Kaw Valley Drainage Dist. of Wyandotte County v. Union Pac. R. Co.

• Decision Date: 30 May 1908
• Docket Number: 2,785.
• Citation: 163 F. 836
• Parties: KAW VALLEY DRAINAGE DIST. OF WYANDOTTE COUNTY et al. v. UNION PAC. R. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

163 F. 836

KAW VALLEY DRAINAGE DIST. OF WYANDOTTE COUNTY et al. v. UNION PAC. R. CO. et al.

No. 2,785.

United States Court of Appeals, Eighth Circuit.

May 30, 1908

L. W Keplinger (C. W. Trickett, on the brief), for appellants.

C. F Hutchings (O. L. Miller, I. P. Dana, S.W. Moore, and Fred H Wood, on the brief), for appellees.

Before HOOK and ADAMS, Circuit Judges, and AMIDON, District Judge.

PER CURIAM.

A decree was entered by the trial court which materially affected substantial rights claimed by appellants. It contained recitals that the parties had consented thereto. The appellants, contending they gave no consent, petitioned the court to correct the decree in that particular. From an order denying the petition this appeal was taken. The appellees now move the court, to dismiss the appeal because (1) the order is not an appealable one; and (2) the transcript filed here is not sufficient and is not properly authenticated. In support of the motion, the appellees say the petition was one for rehearing, was therefore addressed to the discretion of the trial court, and consequently under a familiar rule the denial thereof is not the subject of review. A consent decree responsive to the bill stands, so long as it remains in that form, as an obstacle to a rehearing of the cause, to a bill of review (Thompson v Maxwell, 95 U.S. 391, 24 L.Ed. 481), and to an appeal (McCafferty v. Celluloid Co., 43 C.C.A. 540, 104 F 305). Where a decree recites that it was entered by consent of a party, and he seasonably denies he consented, there must obviously be some method by which he may so challenge the action of the court in that particular and put upon the record the facts which induced it that they may be reviewed by an appellate court; otherwise a misconception of the legal significance of the conduct of a party litigant might prevent him from obtaining a judicial determination of his rights in any court, trial or appellate. A bill of review which proceeds to decree upon evidence and hearing is an appropriate remedy. In Terry v. Commercial Bank, 92 U.S. 454, 23 L.Ed. 620, it was held such a bill would lie where the solicitor of a party deserted his interests, failed to except to reports of a receiver and a master, and improperly consented to the decree; also where it was sought to set aside a decree for fraud. In Ensminger v. Powers, 108 U.S. 292, 2 Sup.Ct. 643, 27 L.Ed. 732, a decree recited that the cause was heard on bill, answer, exhibits, agreement of counsel, and proof, and had been fully argued, and the court had duly deliberated thereon.

Notwithstanding the cause was in equity, a bill of exceptions tendered by the defeated party was allowed and signed by the court, and filed as part of the record. It showed that the judge had abnegated his judicial functions, and had not considered and determined the issues in the case. It was held on bill of review that the decree was a nullity.

In the attack upon the decree in the case at bar not much attention was paid to the rules of pleading and practice in equity, but we think the petition presented to the trial court may be regarded as a bill of review. That it was called a petition does not determine its true character, and that it was informal in other respects may be disregarded in the interest of substantial justice. It was filed within the time allowed for a bill of review, was addressed to the...