Hendryx v. Perkins

• Decision Date: 13 February 1902
• Docket Number: 378.
• Citation: 114 F. 801
• Parties: HENDRYX et al. v. PERKINS.
• Court: U.S. Court of Appeals — First Circuit

114 F. 801

HENDRYX et al. v. PERKINS.

No. 378.

United States Court of Appeals, First Circuit.

February 13, 1902

The following is the opinion of the court below:

COLT Circuit Judge(orally).

In this case I thought it would be better to send for counsel and state to them certain conclusions which I have reached rather than to file a written opinion in the first instance.This suit was brought in the state courtDecember 8, 1883.It is a suit upon a license contract dated October 4, 1878.Under the license the fees were paid to January 1, 1883.The complainant seeks an account from that date.The subject-matter of the license was bird-cage springs.The suit was removed to the circuit court in May, 1884.In November 1884, the defendants demurred to the bill.One of the grounds of demurrer was that the plaintiff had an adequate remedy at law.On April 9, 1885, the court sustained the demurrer without prejudice to the complainant to amend and replead in this court.On April 14, 1885, the complainant divided his action, and filed a bill for discovery merely on the equity side of the court, and a declaration at law on the law side thereof.On April 28, 1885, the defendants filed a demurrer to the bill of discovery, which was overruled May 11, 1885.On the same day the defendants filed an answer to the bill of discovery.On May 22, 1885, a motion of the complainant to file additional interrogatories was granted, and the defendants ordered to answer on or before June 1st.On May 27th the time to answer interrogatories was extended to June 4th.On June 3d the amendments to the answer were filed.On June 12th the complainant filed a supplemental bill, changing the bill for discovery to one for discovery and relief.On June 23d leave to file the supplemental bill was granted.On the same day the court ordered the defendants to bring their account under the bill of discovery down to May 22, 1885, the date of filing the additional interrogatories; the additional account to be filed on or before June 29th.In obedience to the order of court, the defendants filed an amended answer June 29th, bringing their account down to May 22, 1885.In their answer and amended answer to the bill of discovery, the defendants had set up, among other things, that there was a revocation of the license on January 1, 1883, and consequently that they could not be called on to disclose any account beyond that date.

On June 30, 1885, the situation was this: The defendants to the bill for discovery had brought their account down to May 22, 1885; and at the same time in their answers had stated why they did not think they should be called upon for this discovery.Further, the complainant on June 23d had been allowed to file a supplemental bill, changing the bill for discovery into a bill for discovery and relief.On June 29th the complainant moved for a final decree, or to set the case down for hearing on the bill and answer.This was irregular, and should not have been entertained.There was no hearing to be had, and no decree to be entered on the bill for discovery, as the complainant was only entitled to use the answer of the defendants as evidence in his action at law.That is what a bill of discovery is brought for.There is no such thing as setting down a bill of discovery for hearing upon bill and answer.I am aware that the complainant takes the position that there was another answer, which was filed on June 29th, which was an answer to the bill for discovery and relief, or the supplemental bill.There is no proof that any such answer was ever filed until July 21st following.The amended answer which was filed June 29th was the answer to the bill of discovery, and brought the account down to May 22d of that year.In that amended answer the defendants stated the reasons why they thought they should not be called on for that accounting.There is no proof of any nature or description that there was any other answer filed at that time.On the contrary, the facts and circumstances conclusively negative any such contention.The supplemental bill was not allowed until June 22d, and under the rule the defendants had until the August rules to file their answer.That bill covered the whole case, and required the defendants to make full answer.Rule 57 is perfectly clear when you look at its terms.It contemplates that a supplemental bill shall be filed upon a rule day.That rule day would have been in July, and the defendants would have until the next succeeding rule day to answer.'Whenever any suit in equity shall become defective from any event happening after the filing of the bill(as, for example, by change of interest in the parties), or for any other reason a supplemental bill, or a bill in the nature of a supplemental bill, may be necessary to be filed in the cause, leave to file the same may be granted by any judge of the court on any rule day, upon proper cause shown and due notice to the other party; and, if leave is granted to file such supplemental bill, the defendant shall demur, plead, or answer thereto on the next succeeding rule day after the supplemental bill is filed in the clerk's office, unless some other time shall be assigned by a judge of the court. 'The complainant maintains that the paper which was filed upon June 29th was an answer to the supplemental bill.I must conclude that he is mistaken.We are not entirely in the dark as to what that paper was.The complainant did not desire to have anything filed in answer to his bill for discovery except the bare account.He thought other matters were irregular, and therefore we find that on July 14th following he made a motion to strike out part of the answer.The inference from this might be that the answer was upon the files at that time, or at least that the complainant knew the contents of that answer.He moved to strike out the portions of that answer which did not relate to the account but were a defense to any accounting.We have, further, the letter-press copy of Mr. Roberts, counsel for the defendants, of this amended answer; and that shows conclusively that it is the amended answer to the order of the court which was made upon June 23d.Nor is it reasonable to suppose that the defendants would come in and answer the supplemental bill five or six days after it was filed.I am therefore satisfied that the copy of the amended answer which was allowed to be filed by the court at a later date in 1887 is a copy of the original answer which was filed on June 29, 1885, and which was lost from the files.

On July 21st, the defendants filed an answer to the supplemental bill for discovery and relief, and the court proceeded to a hearing on this bill and answer.This is most material.The complainant objected to any hearing upon this bill and answer, and the court had no right to set the case down for hearing, unless upon motion of the complainant or with his assent.That hearing took place under a mistake of all parties,-- the counsel for the complainant, because he supposed that the case had been set down for hearing upon the bill and answer as they stood on June 29th, when it could not have been so set down under the facts as I find them; and under a mistake of the court and of the counsel for the defendants in setting the case down for hearing upon the bill and answer of July 21st.The result is that the complainant has not been allowed to make out his case.There has been no hearing upon the merits.There was a mistake of fact for which I think the parties, the counsel, and the court were all to a certain extent responsible.The court undertook to render a decision and enter a decree upon the bill and answer filed on July 21st, which was a wrong proceeding on its part.To be sure, the complainant contended for a position which was untenable, and which helped to mislead the court; but that affords no justification of the course which was pursued.

The serious objection to granting the complainant any relief in this case is laches.It appears, however, that the position of the parties is substantially the same as it was when the final decree was entered.Under these circumstances, there having been a clear error, which was not discovered until the present time, I believe that the court should endeavor, if possible, to correct it.We need not say who is liable for it,-- the complainant, the defendants, or the court.That fundamental error was in setting this case down for hearing upon the bill and answer filed on July 21st, against the protest of the complainant, upon an answer to the merits of the supplemental bill.There are some things in the petition and in the bill for review which the court deems entirely irrelevant, and which ought, perhaps, to be stricken from the records of the court.There is not a particle of evidence to my mind in this record that anybody connected with this case has been in the least degree guilty of any fraudulent practice of any nature whatsoever.It is true that it does not appear that the then clerk of the circuit court entered upon his minutes the answer which was filed on June 29th; but this was no more than a casual omission.There is no proof of any intention to injure the complainant.It does appear that the answer could not be found later.It would rather seem that it was on the files of this court on July 14th, when the complainant filed his motion to strike out a portion of the amended answer.It may have been among the papers when the case was heard in Providence, and it may have been mislaid by me, and therefore not returned to the clerk's office with the papers.

Under all the circumstances, i have decided to take the responsibility of allowing this case to be reheard, leaving my action to be reviewed by the appellate court.I propose therefore, to...