Hardwick v. American Can Co.

• Decision Date: 18 November 1905
• Citation: 89 S.W. 735,115 Tenn. 393
• Parties: HARDWICK v. AMERICAN CAN CO.
• Court: Tennessee Supreme Court

89 S.W. 735

115 Tenn. 393

HARDWICK v. AMERICAN CAN CO.

Supreme Court of Tennessee.

November 18, 1905

Appeal from Chancery Court, Hamilton County; T. M. McConnell Chancellor.

Action by J. H. Hardwick against the American Can Company. From an order granting leave to file a supplemental bill in the nature of a bill of review, plaintiff appeals. Reversed.

Brown & Spurlock and Pritchard & Sizer, for appellant.

Wheeler & Trimble and White & Martin, for appellee.

NEIL J.

This case was before us at the last term. The opinion then delivered appears in 113 Tenn. 657, 88 S.W. 797. At the former hearing the case was remanded to the chancery court for an account and for other purposes. It is now before us again on appeal from the action of the Court of Chancery Appeals in respect of the disposition which it made of the report of the master, and of the decree of the chancellor thereon and in respect of an application made in the chancery court for the filing of a supplemental bill in the nature of a bill of review, and for the disposition of questions related thereto.

We shall not take up these questions in the order just stated but in what seems to us the most convenient sequence.

1. The defendant filed in the court below a supplemental bill in the nature of a bill of review, for the purpose of putting in issue new matter discovered after the filing of the answer and after the passing of the decree of reference, and while the latter decree was in process of execution before the master. This bill shows that due diligence was exercised on the part of the defendant, and that the matter could not reasonably have been ascertained prior to the time at which it was discovered. Assuming the evidence to have been material and determinative, the question arises as to the proper practice in such cases. We are not aware that this precise question has ever before been determined in this state. The cases are numerous wherein final decisions have been reviewed under bills of review, but we know of no case in our reports where the question has arisen in respect of an interlocutory decree.

The following authorities indicate the true conclusion:

In Laidley v. Merrifield, 7 Leigh (Va.) 346, 353, 354 it is said: "A bill of review, strictly speaking, is a proceeding to correct a final decree in the same court, for error apparent on the face of the decree or on account of new evidence discovered since the final decree. The decree being final, the bill of review is not regarded as a part of the cause in which the decree was rendered, but as a new suit, having for its object a correction of the decree in the former suit. But where a decree is only interlocutory, but liable to the same objection, the party injured must seek his redress, not by a bill of review, as such, but by petition or supplemental bill in the nature of a bill of review. Such petition or supplemental bill is regarded as a part of the very cause, the decree in which is sought to be corrected, and any order or decree of the court on the petition or bill is only interlocutory." Story's Equity Pl. § 425; Daniell, Chancery Pl. & Pr. (5th Ed.) 1537.

The new matter must be brought to the attention of the court as soon as discovered. If, after discovering such matter, the party allow the case to go to a final decree, he cannot use the new matter. Story's Equity Pl. § 423. In Baker v. Whiting, it is said: "To compel the petitioner to wait until a final decree, and then to apply for a bill of review, or a bill in the nature of a bill of review, would not only occasion great delay, but also great expense to the parties, which ought, if practicable, to be avoided. 1 Story, 218, Fed. Cas. No. 786. See, also, Jenkins v. Eldredge, 3 Story, 299, 307, Fed. Cas. No. 7,267. In the last-cited case, Judge Story used this language: "The real question, therefore, for the consideration of the court is whether leave should be granted to file a supplemental bill to bring forward the new evidence. In substance, there is no difference between this case and the case of leave to file a bill of review, or a bill in the nature of a bill of review, except that the latter is solely applicable to cases where there has been a final decree, whereas cases like the present may be before or after an interlocutory decree."

In his work on Equity Pleadings, Judge Story says: "It has been established that matter discovered after a decree has been made, although not capable of being used as evidence of anything which was previously in issue in the case, but constituting an entirely new issue may yet be the subject of a bill of review." Story's Equity Pl. § 416.

Such a supplemental bill may be filed, not only by a complainant, but also by a defendant.

In the work just referred to, it is said: "Hitherto, we have chiefly considered supplemental bills on the part of the plaintiff, but they may also be brought in behalf of the defendant in the suit. Where the matter is newly discovered evidence on the part of the defendant after the cause is at issue, or after the publication is passed, or even after a hearing or decree, the defendant may, by petition to file a supplemental bill, obtain relief." Id. § 337c.

The subject was recently gone over to some extent in an opinion by Judge Lurton in the case of Deitch v. Staub, 115 F. 310-316, 53 C. C. A. 137. In that case it appeared that Staub, as receiver of the Knoxville Building & Loan Association, brought suit against Deitch in the federal court to enforce two mortgages which had been executed for money loaned. Deitch, the defendant, raised the question of usury. On an interlocutory decree, Judge Clark decreed that there was no usury, and referred the case to the master to report on the indebtedness. While the matter was pending before the master new evidence was discovered and offered, showing usury. The master declined to consider the new proof; and there was an exception for this reason. On...