Sewing-Mach. Co. v. *(Green
| Decision Date | 04 March 1889 |
| Citation | 32 W.Va. 335 |
| Court | West Virginia Supreme Court |
| Parties | Sewing-Machine Co. v. Dunbar.*(Green, Judge, absent.; |
The filing of a bill of review for newly-discovered evidence is not a matter of right but rests in the sound discretion of the court.
A bill of review for newly-discovered evidence will not lie, where the evidence is simply confirmatory or cumulative. It must be decisive in its character, such as ought, if true, upon rehearing to produce a different decree, and of which the party was ignorant at the time of the decree and could not have learned by the exercise of reasonable diligence.
If a party allege the finding of a document since the decree, which would have been relevant evidence for him on the hearing, and knew of its existence and contents, though he made diligent search for it before the decree without find] ng it, yet if he could have proven its existence and contents by the evidence of witnesses, he should have done so, and can not on that ground sustain a bill of review.
Where the court of appeals decides the pri nciples of a cause and sends the cause to the Circuit Court with a mandate to enter a decree of a specific character and for further proceedings merely to execute it, though there can not be a bill of review for error of law, yet there may be for after-discovered matter. But to allow a bill of review in such case great caution should be observed, and the new matter should be very material and newly-discovered and unknown to the party at the date of the decree, such as could not have been discovered by the use of reasonable diligence, and not simply confirmatory or cumulative in its nature, but decisive in effect; such as ought, if true, to call for a different decree.
.Loom/is & Tavenner for appellant. L. Smith for appellee.
A report of a decision in this cause is to be found in 29 W. Va. 617 (2 S. E. Rep. 91,), where will be found a statement of the facts, as the case then stood. When the case went back to the Circuit Court of Wood, that court under a mandate from this court entered a decree giving the plaintiff its debt, annulling the deed dated 11th July, 1881, recorded 2d June, 1884, and subjecting the two tracts of land mentioned in that deed to sale. Then, it seems, James T. Dunbar applied to the Circuit Court for leave to file a petition in the nature of a bill of review, and leave was refused. This is not incorporated in the record; but is not material here. Later he presented what styles itself an " amended petition," and asked leave to file it as in the nature of a bill of review; but on the 18th of February, 1888, leave was refused, and he appeals here.
This petition avers, that since the mandate of this Court and the entry of the decree of sale of the 6th March, 1886, he had discovered new and material evidence, of which he was ignorant at the time of the entry of said decree; that before the entry of said decree he had without success diligently searched for an original deed executed by and between John V. Dunbar, Thomas J. Bunbar and petitioner dated July 11, 1881, not recorded, executed pursuant to and was evidence of the agreement, in consideration of the performance of which John Dunbar executed the deed, which had been set aside; that in March, 1887, while removing his household goods he discovered the deed acknowledged, as appears by Justice Biekel's certificate thereto, by Thomas J. Dunbar, 10th October, 1882, and by John V. Dunbar and petitioner, 6th April, 1888. He files this deed, which conveys the two tracts making together ninety four acres to Thomas J. and James T. Dunbar in consideration of their agreement to keep him and pay his debts.
He files an affidavit of Bickel stating, that Thomas J. Dunbar acknowledged the deed as stated in the certificate, and that on April 6, 1883, John V., James T. and Thomas J. Dunbar were together on the land described in the deed, and he was requested to take and certify their acknowledgement of the deed; that John V. Dunbar said the land was James T's, and the matter had been neglected and ought to have been fixed a good while before; that a deed was produced and acknowledged by the Dunbars, and he certified it, and it was discovered, that the wrong deed had been acknowledged, and that the deed acknowledged was a deed from John V. to James T. and Thomas J, Dunbar for another tract, and bore date May 19, 1876, which deed is also filed, (it is similar in consideration and phraseology except as to the description of land with the other deed;) that thereupon the deed dated July 11, 1881, was produced and acknowledged, and certified as to acknowledgement by John V. and James T. Dunbar, and the deed was left on a table in the house on the land, where James T: and John V. Dunbar lived. Bickel further states, that be knew James T. Dunbar had possession of the land before 6th April, 1883, and lie had time and again seen him working on it clearing and exercising acts of ownership over it and treating it as his own, and he had cleared twenty acres, and remodelled the house. He further states, that since 11th April, 1888, he had lived about five miles from dames T. Dunbar in a different neighborhood and did not know of this suit until 1887, when he heard of the decree for its sale, and lie did not mention the subject to James T. Dunbar and did not talk with him on the subject until July, 1887.
The petitioner further states, that he had found in a box said original deed for the tract of 100 acres, dated 19th April, 1876; that both were in the writing of Thomas J. Dunbar; that neither of said deeds was ever delivered to him or Thomas J. Dunbar, but both were written pursuant to an agreement to that effect and at the instance of John V. Dunbar. He hies an affidavit of James L. Bailey, that in July or August, 1882, John V. Dunbar brought to Bailey, a justice, a deed, which had been already signed by John V. Dunbar and, as he remembers, by James T. Dunbar and either Thomas J. or George II. Dunbar; that John V. acknowledged it, and left it to be acknowledged by the other parties, and he kept it some weeks, and returned it to John V. without any certificate, as the others had not acknowledged it. Bailey states, that he believes it to be the same deed referred to in Bickel's affidavit. He also states, that on said occasion John V. Dunbar told him, that the land belonged to the boys. Petitioner files an affidavit, and gives it effect in his petition, made by Churchill Baxter, that he was near by and heard a conversation on Market street, Parkersburg, near Atkinson's store, between Handley, agent of plaintiff, and James T. Dunbar, wherein he heard James T. Dunbar tell Handley, when speaking of the sewing-machine business, that he and his brother owned the land, and if Tom wanted to go into the business he would buy his interest in the land. He also alleged the contents of and filed an affidavit of Preston Groves, that Groves heard a conversation near the well on the farm between James T. Dunbar and Handley about the sewing-machine business, and heard James T. Dunbar tell Handley, that the land belonged to him and his brother, and if his brother wanted to go into the business, he would buy his interest in the land and thus help him into it.
Petitioner further states, that, after his original petition had been presented to the Circuit Court for review and refused, George A. Loomis called his attention to facts set out in Loomis's affidavit filed with petition. It is to the effect, that on April 19, 1876, John V. Dunbar came to him as attorney to get him to prepare some papers stating, that he and his wife were getting old and feeble, and that he had talked to his three sons, James, George and Thomas, and thought that he could make arrangements with them to pay his debts and support him and their mother; in consideration of which he proposed to convey to them his farm, and requested Loomis to draw a deed looking to that arrangement, which he could use as a form to copy from, if the boys were willing to go into it; and that he wrote the deed before referred to of 19th April, 1876; and doubting whether the lien therein retained would compel the boys to comply with what was incumbent on them, he drew a separate contract to...
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