Reed v. Stanley

• Decision Date: 02 October 1899
• Docket Number: 508.
• Parties: REED et al. v. STANLEY et al.
• Court: U.S. Court of Appeals — Ninth Circuit

97 F. 521

REED et al. v. STANLEY et al.

No. 508.

United States Court of Appeals, Ninth Circuit.

October 2, 1899

Rodgers Patterson & Slack, for appellants.

Warren Olney, E. S. Pillsbury, and Robt. Y. Hayne, for appellees.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

On the 23d day of February, 1892, the president and trustees of Bowdoin College, and others, commenced a suit in equity in the court below against James P. Merritt and others, which will be referred to, for convenience, as the case of Bowdoin College v. Merritt. To the to, for convenience, as the case of Bowdoin College v. Merritt. To the bill in that suit a demurrer was interposed upon the ground, among other grounds that the circuit court of the United States for the Northern district of California had no jurisdiction of the suit, which demurrer was by the court overruled. 54 F. 55. Subsequently leave was given the complainants in the suit to file a supplemental bill, which was done; and thereafter a preliminary injunction was granted in the suit, for reasons stated in an opinion reported in 59 F. 6. Still later a plea in abatement was interposed to the suit by J. P. Merritt, one of the defendants, upon the ground that the suit was a collusive one, and should therefore be dismissed; but it was adjudged that the plea was not sustained by the evidence, and the motion to dismiss was denied. 63 F. 215. The cause was thereafter heard upon its merits, and on June 18, 1896, a decree was entered in favor of the complainants. The term of the circuit court at which the decree was entered expired July 10, 1896,-- 22 days after the making and entry of the decree. From that decree an appeal was taken on the 16th day of December, 1896, by the defendants directly to the supreme court of the United States, upon the sole ground that the circuit court had no jurisdiction of the suit, which appeal was dismissed by the supreme court on May 24, 1897, for the reason that under the provisions of the act of March 3, 1891 establishing the circuit courts of appeals (26 Stat.

826), no appeal could be taken unless the certificate as to the jurisdiction was granted by the trial judge during the term at which the decree was entered. Merritt b. Bowdoin College, 167 U.S. 745, 17 Sup.Ct. 996. The mandate of dismissal was received by the circuit court June 16, 1897. On the 17th day of June, 1897, a second appeal was taken to the supreme court by the defendants upon the ground that the case involved the supreme court by the defendants upon the ground that the case involved the 'construction or application of the constitution of the United States,' which appeal was likewise dismissed by the supreme court. 169 U.S. 551, 18 Sup.Ct. 415. And the mandate certifying the dismissal was received by the circuit court March 28, 1898. Four days thereafter, to wit, on the 1st day of April, 1898, the complainants brought the present bill of review, seeking to review and reverse the decree entered in the original suit on the 18th day of June, 1896. An amendment to the bill of review was filed April 11, 1898, in the court below; and on June 2, 1898, another amendment to the bill of review was filed, in which is stated the time occupied by the two appeals to the supreme court from the decree sought to be reviewed. The court below held that the bill of review was filed too late, and upon that ground sustained the demurrers that were interposed thereto, and dismissed the bill. (C.C.) 89 F. 430. Whether or not the court below was correct in its view in that regard, is the first question for consideration.

That there is no statute or rule of court prescribing the time within which a bill os review may be filed is undisputed. But the principles controlling courts of equity in respect to the matter are well settled. A clear statement of them is found in the case of Thomas v. Brockenbrough, 10 Wheat. 148, where the supreme court said:

'It must be admitted that bills of review are not strictly within any act of limitations prescribed by congress; but it is unquestionable that courts of equity, acting upon the principle that laches and neglect ought to be discountenanced, and that in cases of stale demands its aid ought not to be afforded, have always interposed some limitation to suits brought in those courts. It is stated by Lord Camden in the case of Smith v. Clay, Amb. 645, 3 Brown, Ch. 639, note, 'That, as the court of equity has no legislative authority, it could not properly define the time of bar by a positive rule, but that, as often as parliament had limited the time of actions and remedies to a certain period in legal proceedings, the court of chancery adopted that rule, and applied it to similar cases in equity.' Upon this principle it is that an account for rents and profits, in a common case, is not carried beyond six years, or a redemption of mortgaged premises allowed after twenty years' possession by the mortgagee, or a bill of review entertained after twenty years, by analogy to the statute which limits writs of error to that period. These principles seem to apply with peculiar strength to bills of review in the courts of the United States, from the circumstance that congress has thought proper to limit the time within which appeals may be taken in equity causes, thus creating an analogy between the two remedies, by appeal and a bill of review, so apparent that the court is constrained to consider the latter as necessarily comprehended within the equity of the provision respecting the former. For it is obvious that, if a bill of review to reverse a decree on the ground of error apparent on its face may be filed at any period of time beyond the five years limited for an appeal, it will follow that an original decree may, in effect, be brought before the supreme court for re-examination after the period prescribed by law for an immediate appeal from such decree, by appealing from the decree of the circuit court, upon a bill of review. In short, the party complaining of the original decree would in this way be permitted to do indirectly what the act of congress has prohibited him from doing directly.'

From this it will be seen that an original decree cannot be brought before an appellate court for re-examination, by means of a bill of review, after the expiration of the period prescribed by statute for an immediate appeal from such decree; otherwise, as said by the court in the case cited the party complaining of the original decree would by such means be permitted to do indirectly what the act of congress has prohibited him from doing directly. There can be no doubt that prior to the passage of the act of congress of March 3, 1891, creating the circuit courts of appeals, the defendants to the suit...