Crowns v. Forest Land Co.

• Decision Date: 21 February 1899
• Citation: 78 N.W. 433,102 Wis. 97
• Parties: CROWNS v. FOREST LAND CO.
• Court: Wisconsin Supreme Court

102 Wis. 97

78 N.W. 433

CROWNS

v.FOREST LAND CO.

Supreme Court of Wisconsin.

Feb. 21, 1899.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Petition by the Forest Land Company against George H. Crowns for leave to prosecute a cross bill or complaint, or to bring an action in equity in the nature of a bill of review. Denied.

In 1880, one Otto D. Bjorquist conveyed a tract of land to defendant, and took back a mortgage for $16,000, which was afterwards assigned to plaintiff. The mortgage was foreclosed, the property sold, and a judgment for deficiency entered against defendant. An appeal from both judgments was taken to this court by the defendant, and the judgments were affirmed. 74 N. W. 546. While these appeals were pending, the defendant made a motion in the superior court for leave to amend its answer, and set up new matters in the nature of a cross bill, bringing in new parties. After the judgments had been affirmed in this court, and the remittitur had been filed in the superior court, that court made an order vacating said judgments conditionally, and permitting such defense to be made. Upon appeal to this court, this order was reversed. 76 N. W. 613. Afterthe judgment of deficiency had been rendered, the plaintiff commenced a creditors' action, based thereon, against the defendant and its stockholders. While this action was pending, defendant claimed to have discovered facts with relation to the original transaction which rendered it fraudulent, and thereupon obtained leave from the superior court to set up the facts in the creditors' action, and making new parties thereto. This action is now pending. On November 9, 1898, the defendant filed a petition in this court, setting out the facts as above stated, and alleging the facts at length upon which it relies to show that the transactions with Bjorquist, and the judgments mentioned, are fraudulent and inequitable. It asks an order of this court granting leave to prosecute its cross bill or complaint in the creditors' action, or for leave to bring an action in equity against the parties, in the nature of a bill of review, to set aside the judgments heretofore mentioned.

Turner, Bloodgood & Kemper, for appellant.

Nath. Pereles & Sons and E. S. Mack, for respondents.

BARDEEN, J. (after stating the facts).

The relief sought on this motion opens an inviting field. It is a singular circumstance that, after nearly a half century of practice under the Code, the question of practice here presented should have been left open and undetermined. True it is that, under some of the earlier decisions of the court, language has been used that would seem to justify the idea that the bill of review of the old practice is still a proper remedy under the Code. But when we come to consider the object and purpose of the new system, and when we keep in view the fact that the new order was intended as a complete substitute for the old, and that the artificial foundation of the old system has been swept away, the incongruity of the idea becomes manifest. A recent discussion of the objects and purposes of the Code by Mr. Justice Marshall, in Kollock v. Scribner, 98 Wis. 104, 73 N. W. 776, gives emphasis to the situation. What he there said, and the authorities cited, pay tribute to the wisdom of the framers of the new system, and show most clearly the end sought to be attained. A review of the cases decided in the early days of the Code makes manifest the fact that the judges and lawyers who practiced under the old system were very reluctant in yielding homage to the new. As justly remarked by Mr. Pomeroy, in his very able work on Code Remedies (section 31): “The profession and the courts have been left to work their way in the dark, and the consequence has been an utter confusion and uncertainty, which have gone far to defeat the beneficial purposes of the reform, and to create a conviction in the minds of many very able lawyers and judges that the change was a positive evil.” Their reluctance to conform to the new system has given rise to much confusion and uncertainty in practice, and this court can claim no immunity from mistakes in that direction. The prime idea that must be kept in mind is that the Code was intended to be a complete system in itself, and a complete substitute for the old forms of actions and methods of practice. There is absolutely no reason for claiming that the old bill of review exists under our present system. In the Kollock Case Judge Marshall has demonstrated that the ancient cross bill, so potent for good under the equity practice, has no existence under the Code; but the Code permits the answer to be framed to cover all the purposes of the cross bill, which it displaces. Reference, we think, to the statutes, will show that remedies have been preserved therein, or authorized thereby, fully adequate to meet the needs of all parties litigant. The policy of the law is to put an end to litigation. The Code, therefore, cut off and wiped out many of the forms of procedure existing under the old practice, that had a tendency to delay or prolong litigation. First, it abolished all distinction between actions at law and suits in equity. Rev. St. 1898, § 2600. It said, further, that the court should, in every stage of an action, disregard any error or defect in the pleadings or proceedings which did not affect the substantial rights of the adverse party, and that no judgment should be reversed or affected by reason of any such error or defect. Id. § 2829. The court was further authorized, upon the trial, or at any other stage of the action, before or after judgment, to amend pleadings and processes, etc., to make them conform to the facts. Id. § 2830. Within one year after notice, the court might, in its discretion, relieve a party from a judgment or other proceeding against him “through his mistake, inadvertence, surprise or excusable neglect,” and might supply omissions when the party had failed to conform to the law, and permit amendments to make the proceedings conformable thereto. Id. § 2832. The language of the section is broad, and has received a liberal construction. Under another statute a motion for a new trial upon newly-discovered evidence could be made at any time within one year after the verdict or finding. Id. § 2879. And this seems to apply to what are called “equitable,” as well as “legal” actions. Carroll v. More, 30 Wis. 574;McWilliams v. Bannister, 42 Wis. 301;Smith v. Smith, 51 Wis. 665, 8 N. W. 868. Other provisions of the Code might be mentioned, which tend to make it a harmonious whole, and which afford an aggrieved litigant an opportunity to secure relief and protect his rights as fully as under the old practice. Under the old equity practice, a “bill of review,” strictly so called, could only be urged after a final decree. Its purpose was to reverse or modify a decree for error of law apparent on the face of such decree, or on account of new facts discovered since publication was passed in the original cause. Since the adoption of the Code, no one has pretended that a judgment could be reviewed, by this proceeding, for errors on the face thereof. The suitor has always been left to his remedy either by motion, writ of error, or appeal.

The question of whether a bill of review will lie in this state, on the other ground stated, has never been definitely determined. In the early case of Parish v. Marvin, 15 Wis. 247, the action was to reverse the judgment of another circuit court, and for a perpetual injunction. The action was considered to be in the nature of a bill of review, and Judge Dixon says: “If proceedings in the nature of a bill of review may still be taken, they must be had before the court in which the judgment was rendered.” On the point that one circuit court has no jurisdiction to open, review, set aside, or reverse the judgment of another circuit, the decisions are numerous and uniform. Fenske v. Kluender, 61 Wis. 602, 21 N. W. 796;Coon v. Seymour, 71 Wis. 340, 37 N. W. 243;Cardinal v. Lumber Co., 75 Wis. 404, 44 N. W. 761;Stein v. Benedict, 83 Wis. 603, 53 N. W. 891. In the case of Fenske v. Kluender it is said that the action was in equity, and, had the plaintiff been a party to the judgment sought to be affected, the action would have been one to review and annul the judgment therein. The opinion reads: “If the plaintiff can maintain an action of this nature at all (a proposition not here decided), such an action must be governed by the same rules applicable to bills of review.” The case was affirmed on the ground that the action was not commenced in the court which rendered the judgment sought to be reviewed, and because leave had not been obtained to commence the action, in analogy to the old practice. Ketchum v. Breed, 66 Wis. 85, 26 N. W. 271, was a case of a bill of review pure and simple. The right to maintain it was denied on the ground of the laches of the moving party, and it was said in the opinion that, because of that fact, it was unnecessary to determine whether the old remedy by bill of review had been abrogated or not. Thus it will be seen that, whenever the question has been presented, it was left without determination. In the cases cited, expressions are used speaking of bills of review, and bills in the nature of a bill of review. In the old practice the distinction consisted in the fact of whether the decree had been enrolled or not. If the decree had been enrolled, the bill of review was proper. If the decree had not been enrolled, then a bill in the nature of a bill of review would lie, and was usually accompanied by a petition to rehear the original case. Story, Eq. Pl. §§ 421, 422. Under the latter head, and under the Code, the relief sought to be secured thereby is usually obtained by motion, as the judgment is within the control of the court, and may be reviewed or modified at any time during the term. It must be borne in mind that, under our...