McMillan v. Wooley

• Citation: 6 Idaho 36,51 P. 1029
• Parties: McMILLAN v. WOOLEY
• Decision Date: 07 February 1898
• Court: United States State Supreme Court of Idaho

51 P. 1029

6 Idaho 36

McMILLAN v. WOOLEY

Supreme Court of Idaho

February 7, 1898

BILL OF REVIEW.-A bill of review will not lie to obtain a new trial where the party seeking such relief has been guilty of any laches or blunders by which he lost his rights in the original action.

SAME-WHAT MUST BE ALLEGED.-In an equitable action commenced for the purpose of procuring a new trial of a former action, the complaint, designated in equity practice "bill of review" must affirmatively show that by reason of fraud mistake or surprise, against which the complainant could not by the use of reasonable diligence, have protected himself against in the original action, by motion for new trial, by application to vacate or modify the judgment on the ground of mistake, inadvertence, surprise or excusable neglect, made within six months after the adjournment of the term at which the judgment was rendered, or by appeal, thus showing a necessity of resorting to equity.

SAME-TIME WITHIN WHICH IT MUST BE FILED.-A bill of review must be filed within the time within which an appeal could be taken from the judgment sought to be reviewed.

(Syllabus by the court.)

APPEAL from District Court, Bear Lake County.

Judgment affirmed, with costs.

T. L. Glenn, for Appellant.

Section 4229 of the Revised Statutes in effect prolongs the term for a period of six months after its actual adjournment for the purposes of the statutory remedy, and as a bill in equity would not lie during the term, so it will not lie until the expiration of the six months provided by the statute, and this in obedience to the well-known rule that equity will not take jurisdiction where there is a speedy, complete and adequate remedy at law, but when that remedy has ceased to exist it will take jurisdiction where laches is not imputable to the party invoking its aid. (Kitchum v. Crippen, 37 Cal. 225; Ede v. Hazen, 61 Cal. 360; In re Hudson, 63 Cal. 454; Thompson v. Laughlin, 91 Cal. 313, 27 P. 752; Eldred v. White, 102 Cal. 600, 36 P. 944; Freeman on Judgments, sec. 500a.) The word "laches" in the law means unreasonable delay, and is the equivalent of the phrase "inexcusable neglect." In other words it is such delay as the law will not excuse. The law, however, does excuse delay when reason and common sense justify the delay, and in such case delay never ripens into laches. (Livestock Co. v. Thompson and Hall, 41 Cal. 63; Hart v. Gayenchie, 56 Cal. 429; Craig v. Investment Co., 101 Cal. 122, 35 P. 558; Douglass v. Todd, 96 Cal. 655, 31 Am. St. Rep. 247, 31 P. 623; Bast v. Hyson, 6 Wash. 170, 32 P. 997; Sanders v. Hall, 37 Kan. 271, 15 P. 197; Witeside v. Logan, 7 Mont. 373, 17 P. 34.) In the case of Taylor v. California Stage Co., 6 Cal. 230, a witness for the plaintiff was asked on cross-examination if he had not made a different statement out of court, to which he answered that he had not. On motion for a new trial defendant alleged that it was taken by surprise by the testimony of this witness. The court say "if he had made the statement to the defendant and thus misled him," and defendant had relied on the statement, it might have been ground for a new trial. In the case at bar a statement was made to the plaintiff on which he relied, on which he acted, and we are now told it was negligence so to do. (Case v. Codding, 38 Cal. 194; Patterson v. Elly, 19 Cal. 29; Gray v. Hawley, 21 Cal. 397; Rodriguez v. Comstock, 24 Cal. 85.)

John T. Morgan, for Respondent.

A court of equity will not grant a new trial in an action at law where the applicant knew of the condition of the judgment against him in the law action in time to have moved for a new trial in the law cause. (Mastick v. Thorp, 29 Cal. 444.) If a party loses the right to try a material issue through his own neglect or laches, equity will not relieve him. (Boston v. Haynes, 33 Cal. 31.) He has neglected two opportunities of correcting his judgment or reversing it on appeal in this action at law. Equity now, after the lapse of two years, will not interfere. (Neal v. Byers, 45 Cal. 234.) Where the evidence might have been produced on the trial by the exercise of reasonable diligence a new trial will not be granted at law, much less in equity. (Moran v. Abbey, 63 Cal. 56; Hendy v. Desmond, 62 Cal. 260.) In order to get a new trial at law on the ground of newly discovered evidence, the party must produce the affidavits of the witnesses, showing what they will swear to; his own sworn statement will not do. (Arnold v. Skaggs, 35 Cal. 684.)

QUARLES, J. Sullivan, C. J., and Huston, J., concur.

OPINION

QUARLES, J.

The defendants in this case filed a general demurrer to the complaint, which was sustained by the district court. From the judgment dismissing the action the plaintiff appeals. The facts as they appear in the complaint are as follows: Hyrum S. Wooley executed his promissory note to plaintiff for the sum of $ 4,600, on the twenty-seventh day of February, 1894 and on the same day said Wooley and his wife executed a mortgage to the plaintiff on eight lots or parcels of land, to secure the payment of said note at its maturity, August 27, 1894. The mortgage covered some community property, the homestead, and one parcel of separate property of the wife. December 18, 1894, the plaintiff commenced an action in the district court of the fifth district, in and for Bear Lake county, the county in which said property is situated, for the foreclosure of the said mortgage. To this action the defendant, Hyrum S. Wooley, made default, but his wife, Minerva M. Wooley, filed her demurrer to the said complaint, on the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was sustained by the district court, on the ground "that the certificate of acknowledgment of Minerva M. Wooley attached to the said mortgage deed did not conform to the requirements of the law in such cases made and provided, and that the same was defective and void (she, the said Minerva M. Wooley, being then and there a married woman, as alleged in said cause), in this, to wit, that the officer taking the acknowledgment of said Minerva M. Wooley did not certify that he made her acquainted with the contents of said mortgage deed on an examination without the hearing of her husband," whereupon the said district court rendered judgment, dismissing the said action as to the said defendant Minerva M. Wooley, on the twenty-second day of August, 1895. On the twenty-fifth day of February, 1896, the court found that there was due from said Hyrum S. Wooley to plaintiff, on said mortgage debt, the sum of $ 5,600, and rendered judgment foreclosing the said mortgage on the said community property, but refusing to foreclose it on said homestead and separate property of Mrs. Wooley. Thereafter the said community property was sold under the said decree, the proceeds of which paid the costs and disbursements and $ 769.45 of the principal debt, leaving a balance due of $ 4,592, with interest thereon from April 18, 1896, still unpaid. The said mortgage was acknowledged by Wooley and wife before Douglas Hix, then probate judge of said Bear Lake county. The said foreclosure action was brought by the plaintiff through his attorneys, Bell & Breen and Hart & Sons, who appeared at the trial for the said plaintiff. The attorney who represents the plaintiff in this action does not appear to have been an attorney for the plaintiff in the said foreclosure case; nor does it appear in the complaint in this action when said attorney was employed for or on behalf of the said plaintiff; yet it is alleged in said complaint in this action that "the plaintiff, through and by his attorney T. L. Glenn, immediately after the making and entering of said decision dismissing the said cause, carefully and diligently inquired, through and by his said attorney T. L. Glenn, of the said Douglas Hix, the officer taking and certifying the acknowledgment aforesaid, as to whether he had, on an examination without the hearing of her husband, made her acquainted with the contents of the said instrument, and if upon such examination, and without the hearing of her husband, she acknowledged that she executed said instrument, and that she wished not to retract the execution thereof, whereupon the said Douglas Hix informed said T. L. Glenn, attorney for the plaintiff, as aforesaid, that Hyrum S. Wooley, the husband of the said Minerva M. Wooley, was at all the times present and within the hearing of the said Minerva M. Wooley while he took her acknowledgment, and certified the same"; that, relying upon the said statement of said Hix, plaintiff commenced, February 5, 1896, an action against said officer and his sureties on his official bond, to recover damages sustained by plaintiff on account of the gross negligence of the said officer in taking and certifying a void acknowledgment of said Mrs. Wooley to the said mortgage; that this last-named cause came on for trial on September 2, 1896, and on the said trial said Hix testified that he informed Mrs. Wooley of the contents of the said mortgage on examination apart from and without the hearing of her...