Ex parte Monteith

• Decision Date: 09 October 1869
• Citation: 1 S.C. 227
• Parties: EX PARTE MARY S. MONTEITH.
• Court: South Carolina Supreme Court

1 S.C. 227

EX PARTE MARY S. MONTEITH.

Supreme Court of South Carolina.

October 9, 1869

Bill to foreclose a mortgage of land given to secure the payment of a bond which was usurious. No defence was made, and, the bill being taken as confessed, a decree of foreclosure, in the usual form, based on a report of the Commissioner, setting forth the amount due on the bond, according to its terms, was made: Held , That a bill of review would not lie to correct the supposed error in the decree.

A party cannot avail himself of the defence of usury under the Act of 1830, unless he brings the matter, by pleading, to the view of the Court.

Where one loses his suit by his own neglect, he cannot be aided by a bill of review.

BEFORE LESESNE, CH., AT RICHLAND, JUNE, 1868.

This was a petition for leave to file a bill of review, or bill in the nature of a bill of review. In addition to the facts of the case, as stated in the decree of the Circuit Court, it is only necessary to add that the petition set forth that the petitioner, when the bill was filed against her, consulted counsel learned in the law, who advised her that she could make no valid defence to the suit, and that, in consequence of this advice, given in mistake of law, and upon which she confidently relied, she did not appear, and allowed the bill to be taken pro confesso against her.

The decree of His Honor the Chancellor is as follows:

LESESNE Ch.

This is a petition for leave to file a bill of review, or bill in the nature of a bill of review, in a cause of the Columbia Building and Loan Association vs. The Executrix of Galloway Monteith. And the ground of the application is alleged error in law in the decree in said cause.

It is not certain that in this State a bill of review will lie on such a ground. The point arose in the case of Manigault vs. Deas , (Bail. Eq., 296,) in 1831, and the Court used this strong language: " The fifth question requires neither argument nor illustration. In the case of Perkins vs. Long , reported in a note, 1 McC. Ch., 30, it was decided that a bill of review will lie only where new matter has been discovered since the decree, and of which the party could not have had the benefit in the first instance, making a new case, and one proper for equity jurisdiction. In the case of Haskell vs Raoul , 1 McC. Ch., 30, the Court of Appeals decided that a bill of review will not lie for error in law apparent on the face of the decree. This is a point regarded as settled, and both policy and the safety of suitors require that it should not be open for argument." -3 Rich. 541. But in the case of Smith vs. Hunt , decided twenty years after, the Court, without expressly overruling the former decision, or even noticing it, say, that bills of review will lie on account of error in law apparent on the face of the decree, as well as for newly discovered testimony.

But supposing the ground to be a good one, does it exist in this case? What is meant by error apparent on the face of the decree? It does not mean merely erroneous judgment. It rather means a mistake, or omission, or misstatement as to a rule of law, or legal principle, or statutory enactment.-17 Ves. 178. Thus, in Perry vs. Phelps , Lord Eldon says: " There is a distinction between error in the decree and error apparent: error apparent does not apply to a merely erroneous judgment." And, by way of illustration he adds: " The cases of error apparent are of this sort-an infant not having a day to show cause." The error must be obvious, so as to be perceived as soon as brought to the attention of a jurist.

In the case in hand, Galloway Monteith gave a bond and mortgage to the plaintiff for a loan. A bill was filed against his executrix, the present petitioner, and a decree of foreclosure obtained at June Term, 1860, under which the mortgaged property was sold in October, 1860, and the sale reported and confirmed, and the cause marked on the docket " ended," at June Term, 1862. The petitioner made no defence in the cause, but allowed an order, pro confesso , to be entered against her; and the decree was based on a report of the Commissioner, setting forth the amount due on the bond, according to its tenor and import. At the same Term (June, 1860,) a cause of the same plaintiff vs. William Bollinger was heard. The cause of action was a bond, in precisely the same terms as Monteith's, and a mortgage to secure it. This cause was defended, the defence being that the contract was usurious. An elaborate and learned judgment was delivered by the presiding Chancellor, in which the defence was fully considered and solemnly overruled. Bollinger appealed; and, in December, 1861, the Court of Appeals decided that the contract was usurious, reversed the Circuit decree, and dismissed the bill. Thereupon, but not until the 15th of June, 1867, the plaintiff filed this petition, and the alleged error of law in the Circuit decree is, that the Chancellor held that the contract was not usurious.

The Court of Appeals has decided that he made a mistake, and it must, therefore, be conceded that he did. But it only amounted to " erroneous judgment." Until the Court of Appeals spoke, no jurist would have said that there was error in law apparent on the face of the decree, in the sense in which that expression should be understood. Suppose Bollinger, instead of appealing in his case, had filed a petition for a bill of review, and alleged error in law apparent on the face of the decree. It is quite certain that it would not have been listened to. But I do not see anything to distinguish that case from the present.

It is deeply to be regretted that the petitioner did not pursue the course which would have saved her from the loss she has suffered. But the Court is constrained to refuse the prayer of the petition.

The petitioner appealed, on the grounds:

First. Because it is respectfully submitted that there was error apparent on the face of the decree in the case of the Columbia Building and Loan Association against this petitioner, for which a bill of review will be granted.

Second. Because the petitioner was prevented from appealing from the said decree, under a mistake of law, and by advice of counsel.

Third. Because the claim of the Columbia Building and Loan Association was founded in usury, was against the policy of the law, and ought to be set aside.

Fourth. Because such claims as that of the Columbia Building and Loan Association against the petitioner had, before that time, been generally, if not universally, regarded as legal, and the opinion of the Court in the case of Bollinger is in the nature of after discovered testimony, for which a bill of review will lie.

Fifth. Because the strictness of the rules in regard to bills of review is necessary to prevent perjury, and that such rules are adopted for that purpose; whereas, it is respectfully submitted that in the present case perjury is impossible-the entire evidence being in the record of the case, and in the opinion in the case against Bollinger.

Sixth. Because it is respectfully submitted that a great wrong has been done to the petitioner by the decree against her for the Building and Loan Association, and that there is no wrong without a remedy.

Seventh. Because all the facts are admitted to be true, and that, therefore, no wrong will be done to the Building and Loan Association by granting leave to file a bill of review.

Fickling & Pope , for appellants.

First ground:

1st Point. Formerly a bill of review would lie for error in...