Gardner v. Emerson

• Decision Date: 30 April 1866
• Citation: 1866 WL 4477,40 Ill. 296
• Parties: MARY GARDNER et al.v.ELIJAH C. EMERSON et al.
• Court: Illinois Supreme Court

40 Ill. 296

1866 WL 4477 (Ill.)

MARY GARDNER et al.

v.ELIJAH C. EMERSON et al.

Supreme Court of Illinois.

April Term, 1866.

APPEAL from the Circuit Court of Knox county; the Hon. JOHN S. THOMPSON, Judge, presiding.

The opinion of the court contains a sufficient statement of the case.

Mr. H. M. WEAD, for the appellants.

Mr. T. G. FROST, for the appellees. Mr. JUSTICE BREESE delivered the opinion of the Court:

This was a bill in chancery in the Knox Circuit Court, brought by Elijah C. Emerson and others against Mary Gardner and Cornelius Runkle, to review a decree theretofore obtained by Mary Gardner against the complainants in a proceeding to foreclose a mortgage made by Richard Whiting to Joseph T. C. Carpenter, of which she claimed to be the assignee.

A general demurrer was put in to the bill which the court overruled, and ordered that the original decree should be vacated, and that the complainants have leave to answer the original bill; and that it be referred to the master in chancery to ascertain the amount due on the note and mortgage set forth in the original bill, and report the same, together with his mode of computation to the court; and it was further decreed, that the complainants in the bill of review, have leave to redeem the mortgaged premises by paying the amount found to be due, within three months from the date of confirming the master's report, or determining the amount due the complainant in the original foreclosure bill; and it was decreed that before the payment thereof, all the proceedings under the original bill, subsequent to the decree for the sale of the mortgaged premises, including the sale, deed, and decree of confirmation, should be wholly vacated and set aside; and that the complainant in the original bill should, thereupon, release the mortgaged premises from the lien of the mortgage, and from all title, interest and claim derived thereunder.

From this decree Mary Gardner appeals to this court.

The appellants contend, that the bill of review is fatally defective, for the reason that it does not set forth and show, where, and by what court, the original decree was pronounced, or in what State or county it was passed; that the bill of review does not set forth the bill and decree in the original cause sought to be reviewed; in short, that it fails to set forth even the substance of the proceedings under the original bill, and which complainants allege were erroneous, so that no court can judicially know or determine where the original suit was tried, what decree was made in it, or by whom the decree was made.

This bill is filed upon error alleged to be apparent on the face of the decree; how necessary is it then, nay, indispensable, that the bill, which is the origin of the decree, should be, substantially at least, set forth in the bill of review. It cannot be determined, on inspection of the decree, that there is error on the face of it, unless it is known on what allegations and statements it was founded, and for these, the original bill must be seen and inspected, and to enable the court, in which the bill of review is filed, to do that, the bill and proceedings must be incorporated into the bill of review. The rule is stated in 3 Daniell's Ch. Pr. 1728, in which all text writers on this subject concur. Adam's Equity, 880; Story's Eq. Pl. § 420. It is this: In a bill of review, the former bill and the proceedings under it must be stated; the decree and the point in which the party exhibiting the bill of review conceives himself aggrieved by it; and the ground of law upon which he seeks to impeach it; or if it be brought on newly discovered evidence, the evidence must be stated.

This court, in the case of Turner v. Berry, 3 Gilm. 543, said: “From the very nature of this proceeding, it is manifestly necessary to state all of the proceedings in the original cause,...