Reed v. Stanly

• Decision Date: 26 September 1898
• Docket Number: 12,582.
• Citation: 89 F. 430
• Parties: REED et al. v. STANLY et al.
• Court: U.S. District Court — Northern District of California

89 F. 430

REED et al. v. STANLY et al.

No. 12,582.

United States Circuit Court, N.D. California.

September 26, 1898

Rodgers Paterson & Slack, for complainants.

E. S Pillsbury, George N. Williams, Robert Y. Hayne, Richard C Harrison, for defendants president and trustees of Bowdoin College and others.

Warren Olney, for defendants Stanly, Russell, and Wheeler, trustees for Samuel Merritt Hospital.

HAWLEY District Judge (orally).

This is a bill of review, brought without leave of the court, for the purpose of obtaining a review of the final decree of this court in the case of the President and Trustees of Bowdoin College v. Merritt, rendered June 5, and entered June 18 1896 (75 F. 480), upon the ground that upon the face of the record there appear certain errors, which entitle the present complainants to have that decree set aside. To this bill the defendants have interposed a demurrer, upon the grounds, among others: (1) That there are no averments in the bill which show any error in the record; (2) 'that the time limited by law and by the rules of practice of courts for the exhibiting of any such bill of review had elapsed long prior to the exhibiting of said bill of complaint, and the said bill of complaint as amended discloses such neglect and laches in the institution of the present suit as precludes the complainants from having the said decree reviewed or reversed;' (3) that, in so far as complainants seek to have said decree adjudged to have been obtained by fraud, the complainants are estopped from exhibiting against these defendants any bill of complaint, 'because it clearly appears from the said bill of complaint as amended that all of the fraud by which the said decree is alleged to have been obtained was by both of the complainants herein properly pleaded in the said former suit, and prior to the making of the said decree, and that the said alleged fraud was fully and particularly denied in the said former suit by these defendants, and that in the said former suit witnesses were examined and evidence was taken upon the question whether any such fraud as was in the said suit pleaded, and as is in the said bill of complaint herein as amended alleged to have been practiced by these defendants, * * * had been practiced by these defendants, or by any of them, and that on the 23d day of July, 1894, this court, having heard the said witnesses and examined the said evidence, made and entered an order in the said suit, wherein and whereby it was duly adjudged and decreed that no such fraud had been practiced,' etc. Before argument upon the demurrer, the defendants Stanly, trustee under the trust created by Catherine M. Garcelon, and Stanly, Russel, and Wheeler, trustees of the Samuel Merritt Hospital, by leave of the court, filed a joint and several plea to the amended bill of complaint, which, upon its face, avers and shows that the complainants herein have no interest whatever in the litigation involved herein. It was suggested that the hearing on this plea should be submitted with the demurrer, so that all the questions could be considered and disposed of at the same time. In the natural order of the proceedings, this course would undoubtedly be proper and advisable; but the complainants objected thereto, and claimed to be unprepared at the present time to meet the issues raised by the plea. The demurrer was then argued and submitted.

The contention of the defendants is that no error appears in the record of the former suit. If the question is so presented by the bill as to require an examination upon the merits, it would involve a review of the decisions of this court in the original cause, in which the court, after a careful consideration of the arguments of counsel, substantially identical in character with the arguments herein made by the complainants,-- the same authorities being cited, having special reference to the particular nature and character of the suit, and of the question whether the respondents Stanly and Purington, as trustees, were such indispensable parties to the suit and had such interest therein as made it the duty of this court, for the purpose of determining its jurisdiction, to arrange the parties on one side or the other of the controversy, according to their respective interests, and whether under all the facts the trustees should be arranged on the side of the complainants,-- held, against the contention of the complainants, that it had jurisdiction of the case. 63 F. 213. But we are met at the threshold of the argument upon the demurrer with the proposition that the bill of review was not filed within the time allowed by law, and that this court is not, therefore, authorized to consider any of the questions raised therein. Preliminary to a consideration of that question, it is deemed proper to briefly refer to the question of the alleged fraud. The bill alleges 'that all of the said fraud was by your orators properly pleaded, and fully shown to this court in the said suit, and prior to the making of the said decree.'

In Buffington v. Harvey, 95 U.S. 99, which was an appeal from a decree sustaining a demurrer to a bill of review, the effect of which was to leave the decree in the original cause in full force and effect, the court said:

'The only questions open for examination on this appeal are such as were open on the bill of review, and these, as shown in Whiting v. Bank, 13 Pet. 6, and Putnam v. Day, 22 Wall. 60, were only such as arose upon the pleadings, proceedings, and decree, without reference to the evidence in the cause. The decision of the court upon the issues of fact, so far as they depend upon the proofs, are conclusive on a bill of review.'

This general principle has been frequently announced by the supreme court in subsequent cases, and is too well settled to require more than a mere reference to the authorities. Thompson v. Maxwell, 95 U.S. 391, 397; Beard v. Burts, Id. 434, 436; Shelton v. Van Kleeck, 106 U.S. 532, 534, 1 Sup.Ct. 491; Bridge Co. v. Hatch, 125 U.S. 1, 7, 8 Sup.Ct. 811; Jourolmon v. Ewing, 29 C.C.A. 41, 85 F. 103, 106; Story, Eq. Pl. Sec. 407. In Shelton v. Van Kleeck, the court held that a demurrer to a bill of review does not admit the truth of any allegation in the bill which is inconsistent with the record. The frauds for which a bill to set aside a decree rendered by a court of competent jurisdiction will be sustained are only those which are extrinsic or collateral to the matters tried, and not a fraud which was in issue in the former suit. U.S. v. Throckmorton, 98 U.S. 61, 65; Vance v. Burbank, 101 U.S. 514, 519. The question of fraud, however, was upon the argument virtually eliminated from the case by complainants' counsel, who stated that the allegations in the bill in that respect might be treated as surplusage.

Was the present bill filed within the time allowed by law? This bill is based solely upon alleged error in law 'on the face of the decree,' and does not involve any examination of matters of fact. 2 Daniell, Ch.Prac. (6th Am.Ed.) § 1576. Such bills have, ever since the decision in Smith v. Clay, Amb. (decided in 1767) 645, 647, been treated and considered in the nature of a writ of error. There is no statute law or any rule of court designating the time within which bills of review may be filed. But the United States courts, following the analogy of the statutes limiting the time for taking appeals from decrees in equity and writs of error to review judgments at law, have universally held that a bill of review must be brought within the same length of time as is allowed by statute for taking an appeal. Thomas v. Harvie's Heirs, 10 Wheat. 146; Kennedy v. Bank, 8 How. 586, 609; Ricker v. Powell, 100 U.S. 104, 109; Clark v. Killian, 103 U.S. 766; Ensminger v. Powers, 108 U.S. 292, 302, 2 Sup.Ct. 643; Central Trust Co. v. Grant Locomotive Works, 135 U.S. 208, 227, 10 Sup.Ct. 736; McDonald v. Whitney, 39 F. 466; Knox v. Iron Co., 42 F. 378, 380; Rector v. Fitzgerald, 8 C.C.A. 277, 59 F. 808, 812. See, also, Shepherd v. Larue, 6 Munf. 529; Gordon v. Ross, 63 Ala. 363, 366; Story, Eq. Pl. Sec. 410.

It is unnecessary to specially note the changes that have been made in the statutes with reference to the time within which an appeal may be taken. Prior to 1872 the time was five years after that, two years, until the act of March 3, 1891, creating the circuit courts of appeals, when the right of appeal and the time for taking an appeal to the respective courts was divided into classes. Before discussing the provisions of the act of 1891, it is deemed proper to give a brief history of the steps that have been taken in the original suit of Bowdoin College v. Merritt. That suit was commenced in February, 1892. A demurrer was thereafter interposed to the bill, upon the ground, among others, that the circuit court had no jurisdiction of the suit. In February, 1893, the demurrer was overruled. 54 F. 55. In November, 1893, leave was granted to file a supplemental bill, and a preliminary injunction, as prayed for, was granted. 59 F. 6. Subsequently, a plea in abatement was interposed by J. P. Merritt, upon the ground that Stanly and Purington (trustees), for the purpose of bringing and maintaining the suit in the circuit court of the United States, and to evade the provisions of the constitution of the United States and the laws giving jurisdiction to the circuit courts, brought the suit in the name of the complainants, without authority; that complainants were only nominal parties to said bill; that Stanly and Purington had always been, in truth and in fact, the only real parties complainant, and that they were only nominally and colorably defendants in said suit; that the suit was not, in truth or in fact, a controversy between citizens of...