Ryerson v. Eldred

• Decision Date: 11 May 1869
• Citation: 18 Mich. 490
• Court: Michigan Supreme Court
• Parties: Tunis Ryerson et al. v. Samuel D. Eldred et al

18 Mich. 490

Tunis Ryerson et al. v. Samuel D. Eldred et al

Supreme Court of Michigan

May 11, 1869

Heard May 11, 1869

This case was decided at the January term of 1869, and is reported ante, p. 12.

An application was now made for a rehearing or such other relief as might be proper, upon a showing substantially as follows:

It is claimed that by the decree possession is given of a larger tract than was covered by the contract under which the rights of Samuel D. Eldred accrued. Copies of the various papers were set out, but as the court did not discover any misdescription, it will not be necessary to recite them.

The affidavits set out also that Samuel D. Eldred's interest was sold on execution in December, 1864, and that a sheriff's deed was made to one Bunker in January, 1869 and they claim that the sheriff's vendee, and not Eldred was entitled to possession.

They further set forth that the title had, before the assignment to Francis S. Eldred, become vested in all the partners by conveyance from Samuel D. Eldred to Eben Smith, and from Smith to them, and that it had been agreed before the hearing that these papers might be read, and that the omission to set them forth in the bill was accidental.

It was also set forth on belief that the assignee was not aware of the contract held by Samuel D. Eldred from the other partners. It was also claimed that the decree of the Supreme Court was not enrolled and signed by the judges. It also appeared that the circuit court had granted leave to file a bill of review, and one had been filed accordingly.

Application denied, with costs.

E. S. Eggleston, in support of the application, cited Stafford v. Bryan, 2 Paige Ch. R., 47.

G. V. N. Lothrop, contra, referred to Southard v. Russell, 16 How. R., 547, 570; Prevost v. Gratz, 1 Pet. C. C. R., 379; Daniel v. Mitchell, 1 Story C. C. R., 200; Dexter v. Arnold, 5 Mason's R., 303; Baker v. Whiting, 1 Story C. C. R., 230; Mead v. Arms, 3 Vt. 148; People v. Mayor of N. Y., 25 Wend. R., 252.

D. D. Hughes, in reply.

OPINION

Per Curiam:

We can pay no attention to the proceeding in the circuit allowing a bill of review. The decree complained of is a decree made by this court sitting as a court of last resort; and if any such bill can be permitted at all, it can only be done by the leave of this court: Southard v. Russell, 16 How. R., 547; Stafford v. Bryan, 2 Paige Ch. R., 47.

Nor is there any force in the suggestion that our decree has not been enrolled. Decrees in this court are never made in any other way than by entry on the journals. The decree, therefore, which was sent down to the circuit for execution, was final and complete.

It certainly seems a novel proposition that a rehearing or review should be granted in this court after judgment actually entered and remitted to the circuit. It seems to be laid down quite generally that the house of lords (whose practice we follow principally in appeals), will not review its decisions: Attorney-General v. Ward, 1 Myl. and Cr., 449; Brown v. Aspden, 14 How. R., 25; Mitf. Eq. Pl., 79; People v. Mayor, 25 Wend. R., 252.

And it would be out of the question to have a rehearing in this court on any new facts or case, because we can only review or hear a case on the record as it comes up from ...