Eaton v. Dickinson

• Decision Date: 31 December 1855
• Citation: 35 Tenn. 397
• Parties: JOHN H. EATON v. D. W. DICKINSON, Administrator.
• Court: Tennessee Supreme Court

35 Tenn. 397

JOHN H. EATON

v.D. W. DICKINSON, Administrator.

Supreme Court of Tennessee.

December Term, 1855.

FROM WILLIAMSON.

This was a bill of review, filed in chancery at Franklin, upon the facts stated in the opinion. At the November term, 1849,¹ Chancellor Cahal, decreed for the complainant; from which the respondent appealed.

Meigs, E. H. Ewing, and Reid, for complainant; J. Marshall and F. B. Fogg, for the respondent.

McKinney, J., delivered the opinion of the court.

This is a bill of review brought to review and reverse a decree of the chancery court at Franklin, obtained by Dickinson, against John H. Eaton and Allen A. Hall, as copartners, for $1,592.62, for money paid by him as accommodation endorser of several promissory notes, alleged to have been endorsed for the benefit of Hall & Eaton.

It seems that it did not appear from the face of the notes that they were either made or endorsed for the use or benefit of the firm of Hall & Eaton. In his answer to the bill of Dickinson, in the original cause, Eaton states that the transaction took place during his absence from the state; that it was without his knowledge or consent, and wholly without authority; and he therein expressly denies his liability, as a member of said firm or otherwise, for the money so paid by Dickinson.

The only evidence adduced on the hearing of the original cause, as the bill of review alleges, to establish the fact that said notes were both made and endorsed for the benefit of the firm, was that contained in the deposition of Hall, the partner, and co-defendant of Eaton in the cause, taken in behalf of Dickinson.

And solely upon that evidence was the decree based, which is sought, by the present bill, to be reversed.

The ground of review assumed in the bill is that the decree is wholly erroneous and unwarranted, because founded exclusively on the testimony of Hall, who was an incompetent witness.

That Hall was incompetent, and his deposition inadmissible, has not been controverted in the argument here. But, admitting this to be so, the counsel for the defendant insist that, upon well-established principles, it constitutes no grounds for a bill of review.

On the other hand, it is insisted that by the proper construction of the act of 1835, ch. 20, sec. 15, a bill of review is admissible on the ground assumed in the present case.

The power of a court of chancery to review a decree after its enrollment, or, under our practice, after the adjournment of the term at which it was pronounced, rests on the first of the ordinances in chancery of Lord Bacon, which is as follows: “No decree shall be reversed, altered, or explained, being once under the great seal, but upon bill of review; and no bill of review shall be admitted, except it contain either error in law, appearing in the body of the decree without further examination of matters of fact, or some new matter which hath arisen in time after the decree, and not any new proof which might have been used when the decree was made; nevertheless, upon new proof that is come to light after the decree made, and could not possibly have been used at the time when the decree passed, a bill of review may be grounded by the special license of the court, and not otherwise.” See Works of Lord Bacon, 2d vol., 479, Am. ed. 1834.

It is clear that under this ordinance the present case contains no ground for a bill of review. The error set forth in the bill is not error in law, appearing in the body of the decree. By error apparent on the face of the decree is not meant a decree merely erroneous and improper in itself, because based upon inadmissible or improper evidence, or contrary to or unsupported by proof; but a decree that, in point of law, is erroneous upon the state of facts as assumed and set forth in the body of the decree itself.

In the language of a distinguished chancellor, “The question is not whether the cause is well decided, but whether the decree is right or wrong on the face of it.” 17 Ves. 178.

The evidence in the case at large cannot be looked to, in order to demonstrate that the conclusions of fact stated in the decree are contrary to the proof, or are founded on insufficient or improper proof; but, taking the facts to be as they are stated on the face of the decree, it must appear that the conclusions of law are erroneous. See 3 Dan. Ch. Pr. 1727; Story's Eq. Pl., sec. 407; 3 Paige, 368;5 Mas. 303;13 Pet. 6.

In England the practice is to embody in the decree the substance of the bill, answer, and other pleadings, and also a statement of the material grounds of fact upon which the decree is based. In our practice the allegations of the pleadings are not recited in the decree: it is not necessary that it should be done, because by a rule of chancery practice adopted by the courts, under the authority of a statute, it is declared that the bill, answer, and other pleadings shall be considered as parts of the record. They need not, therefore, be embodied in the decree, because by force of this rule they are as much part of the record as the decree itself.

The same rule requires that the facts, “as they appear in proof before the court,” shall be recited in the decree; and the omission to do so has been held by this court to be error, for which a bill of review might be maintained. Burdoine v. Shelton, 10 Yerg. 41.

In the English practice, as well as our own, it is admissible to compare the decree with the pleadings, in order to see whether the former is consistent with the latter; for, if it be not so, this would constitute error apparent on the face of the decree. But in the English practice it is not necessary, for this purpose, to look out of the decree, because it contains a recital of the material allegations of the bill and answer. In our practice the effect is the same, as, by the rule before referred to, the pleadings are part of the record before the court, as much as the decree. At all events, this difference in practice does not affect the application of the principle of the ordinance.

We now proceed...