In re Brown

• Decision Date: 03 December 1913
• Citation: 213 F. 701
• Parties: In re BROWN et al.
• Court: U.S. District Court — Southern District of New York

213 F. 701

In re BROWN et al.

United States District Court, S.D. New York.

December 3, 1913

Hays Hershfield & Wolf, of New York City, for appellants.

Thorndike Saunders, of New York City, for appellee.

HAND District Judge.

So far as the order granting leave is concerned, it was not necessary, because the complainant in the bill for review could have filed the bill without any order, if it be a bill of review for errors apparent on the record (Ricker v Powell, 100 U.S. 104, 109, 25 L.Ed. 527; Davis v Speiden, 104 U.S. 83, 26 L.Ed.

660); the rule goes back to Lord Burke's ordinances. That it is only a bill of review for error apparent on the record appears from Tilghman v. Werk (C.C.) 39 F. 680, a decision by Mr. Justice (then Judge) Jackson, who was exceptionally learned in matters of equity procedure. Indeed, the only theory upon which the bill can stand is that the law was misconceived by this court when it signed the order; the fact that this court was then controlled by an authoritative decision of the Circuit Court of Appeals does not change the result.

An error of law is a misconception of what the rule is which will eventually be enforced by the court having the final word. No new fact is now suggested which could have been originally pleaded properly.

This is enough to dispose of the order; but as the question has been thoroughly argued in other respects, and as the decision of the bill of review will be inevitably referred to me, I think it will be the quickest to state my judgment more at large as to the validity of the bill itself on the merits, especially as it seems to me to have some fatal defects which inevitably make it bad.

The time within which an appeal might be taken from the original order is long since passed, and the only theory upon which the complainants can meet the usual rule which limits the time to file such a bill (Thomas v. Brockenbrough, 10 Wheat. 146, 6 L.Ed. 287), is that the case was out of the jurisdiction of this court so much of that time that there have not been six months during which the court could have entertained the bill (Ensminger v. Powers, 108 U.S. 292, 2 Sup.Ct. 643, 27 L.Ed. 732). That case was one in which the appeal was dismissed under circumstances which were held to excuse the appellant. There is no case which I have found where the appellant, who has actually procured the hearing on the merits of one appeal, has been allowed afterwards to take another. However, even if such a bill to review might in some cases be good, it is quite apparent that there would be no equity in permitting it here in view of all the facts, for the following reasons: When the complainants appealed from so much of the order as dismissed these two petitions, they removed the whole proceedings into the Circuit Court of Appeals.

The scope of the review by the Circuit Court of Appeals was limited, however, by the assignment of errors. Now the assignment of errors either included the question now raised, or it did not. If it did include the questions now raised, the Circuit Court of Appeals passed upon them, and, for obvious reasons under the authorities, no bill of review in this court lies (Southard v. Russell, 16 How. 547, 570, 14 L.Ed. 1052; Kimberly v. Arms (C.C.) 40 F. 548), at least without leave of the Appellate Court. If, on the other hand, the assignment of errors did not cover the case, it was because the complainants here chose to leave that feature of the order of this court unassailed. If they did, there is no room for the application of the rule in Ensminger v. Powers, supra, for there the appeal attempted to raise the point. Not only might they have originally added an assignment of error upon that point, but they might also have amended their assignment of errors in the Circuit Court of Appeals to include it, or even, if 'a plain error,' they might have urged it under rule 11 of the rules of the Circuit Court of Appeals (150 F. xxvii, 79 C.C.A. xxvii) without assignment. Nor may they say that they were not aware of the point, for their counsel successfully raised the same point in Gorman's Appeal, 184 F. 454, 106 C.C.A. 536, in this very proceeding, the decision in which is the cause of this application. Indeed, in this very case the seventh exception to the master's report challenged the rule of law laid down in the case of Re McIntyre, Ex parte Grace, 181 F. 960, 104 C.C.A. 424, which required the particular certificate to be traced, thus showing that at one period this question was raised. The eighth and ninth exceptions to the master's report raised the same question.

The result, therefore, of...