Scott v. Scott's Ex'r
| Decision Date | 07 October 1871 |
| Citation | 72 Ky. 174 |
| Parties | Samuel Scott, & c. v. Wm. Scott's ex'r, & c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM JESSAMINE CIRCUIT COURT.
STEVENSON & MYERS, For Appellants,
CITED
Story's Equity, 4th ed., p. 388, sec. 377; p. 458, sec. 415.
3 Abb 86, Daguerre v. Oser.
4 Met 130, Taylor v. Moran.
1 Met. 667, Brookover v. Hurst.
3 Dana, 76, Riley v. Wiley.
3 Dana, 536, Broadus v. Broadus.
5 Dana, 464, Moore v. Moore.
14 B. Mon. 172, Bush v. Madeira.
15 B. Mon. 377, Rogers v. Rogers.
11 How. 170, Troy & Boston R. R. Co. v. Tibbits.
18 B. Mon. 230, Clarke v. Seaton.
13 B. Mon. 404, Hord v. Chandler.
J. S. BRONAUGH, T. N. & D. W. LINDSEY, For Appellees,
| 7 B. Mon. 124. | Code, sec. 579, 372. |
5 Bush, 193, Mason v. Mason.
18 B. Mon. 775,McLean v. Nixon.
3 Bush, 642, Watson, & c. v. Avery, & c.
4 Mon. 412, Hynes v. Meredith.
11 B. Mon. 220, Brunk v. Means, & c.
10 B. Mon. 251, Carter v. Stennet and Eason.
This case was heretofore in this court on a former appeal, when the judgment was reversed, and at the November term, 1869, of the Jessamine Circuit Court appellee presented the mandate and moved the court to have the same entered, and for a judgment in conformity thereto.
The mandate is in the following words: " For the errors herein pointed out alone the judgment is reversed on the original and cross-appeals, and the cause is remanded with directions to correct the judgment as herein indicated, and for further proceedings not inconsistent with this opinion."
Appellants defendants below, then objected, and offered to file an amended answer setting up the discovery of new and important evidence since the original judgment was rendered, and which they could not have produced by reasonable, or indeed without the utmost, diligence. A part of the evidence thus discovered and produced is in writing, and was accompanied with a statement of facts in the amended answer, which, if sustained by other evidence that might and probably would have been produced on the trial, would have made out a sufficient cause for vacating or at least modifying the judgment ordered by this court to be rendered; but the court below refused to permit the amended answer tendered by appellants, and which they made a cross-petition, to be filed, and proceeded to render judgment in accordance with the mandate of this court. That judgment appellants have superseded, and now by this appeal ask to be reviewed and reversed.
The mandate was imperative, no discretion was left to the court, and the judgment directed to be rendered was to be final--nothing left open for further preparation. This court itself had no power to revoke or alter it after the expiration of the term at which it was pronounced, but it must be carried out according to its true intent and meaning. (Brown v. Crow's heirs, Hardin, 443; Kennedy, & c. v. Meredith, 4 Mon. 411.)
The court below therefore properly entered the judgment in pursuance of the mandate of this court; and having done so, that judgment was final, and stood on the same footing of all final judgments, and could not be modified or vacated except for the causes and in the mode pointed out in sections 579 and 581 of the Code of Practice. (McLean v. Nixon, 18 B. Mon. 768.)
In that case it was held that a bill of review was not under the former practice barred by an affirmance in this court; nor was a party precluded from filing it on the ground that the decree in the court below had been rendered in conformity with the mandate of this court; and it might be maintained upon newly-discovered facts or the recent discovery of written testimony of a permanent and unerring character. ( Singleton v. Singleton, 8 B. Mon. 367; Bush v. Madeira's heirs, 14 B. Mon. 172.)
And under the Code of Practice a judgment which has been affirmed by this court, or a judgment entered in conformity to the mandate of this court, may be vacated by a petition in the circuit court; but it can only be done for some of the causes enumerated in section 579 of the Civil Code, and for such errors as could not be noticed by this court. The proceedings instituted for such a purpose must be commenced within the time prescribed by the provisions of the Code. (Rouse v. Williams, MS. Opinion, Winter Term, 1857; McLean v. Nixon, supra. )
By section 579 of the Civil Code (supra ) the court where a judgment or final order has been made, has power after the expiration of the term to vacate or modify such judgment or order by granting a new trial for the cause, and in the manner prescribed in section 373. This last section provides that the application for such modification or vacation must be made by a petition filed with the clerk not...
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