Shelton v. Van Kleeck
| Decision Date | 08 January 1883 |
| Citation | 106 U.S. 532,27 L.Ed. 269,1 S.Ct. 491 |
| Parties | SHELTON and another v. VAN KLEECK and others |
| Court | U.S. Supreme Court |
[Syllabus from page 532 intentionally omitted]
[Statement of Case from pages 532-534 intentionally omitted] Chas. J. Beattie and L. E. Payson, for appellants.
John I. Bennett, for appellees.
The only questions open for examination on a bill of review for error of law appearing on the face of the record are such as arise on the pleadings, proceedings, and decree, without reference to the evidence in the cause. This has been many times decided in this court. Whiting v. Bank of U. S. 13 Pet. 6; Putnam v. Day, 22 Wall. 66; Buffington v. Harvey, 95 U. S. 99; Thompson v. Maxwell, Id. 397.
A demurrer admits only such facts as are properly pleaded. As questions of fact are not open for re-examination on a bill of review for errors in law, the truth of any fact averred in a bill of review inconsistent with the decree is not admitted by a demurrer, because no error can be assigned on such a fact, and it is, therefore, not properly pleaded. This disposes of the first, second, third, fourth, and fifth specifications of error presented in this bill of review. They are all errors of fact, and can only be determined by a reference to the evidence. It nowhere appears from 'the bill, answer, and other pleadings, together with the decree,' constituting what Mr. Justice STORY said, in Whiting v. Bank of U. S. supra, 'is properly considered as the record,' that there was any usury in the case, or that the appellants had not waived their homestead rights as alleged in the bill.
All the allegations of error on the face of the record are equally bad. It is stated in the decree that all the material averments of fact in the bill were proved, and on these facts the priority of the lien of the complainant was established. All the issues were thus disposed of, and the decree was in favor of the complainant and against all the defendants. The omission of the name of McGregor from among those against whom it was stated in the decree the bill was taken as confessed, is unimportant. If, as is stated in the brief of counsel for the appellant, he was served with subpoena, and did not plead, answer, or demur to the bill, the decree was in fact proconfesso as to him, and he is as much bound as if he had been particularly named.
All the new matter alleged to have been discovered relates to the proceedings in making the sale, and can have no effect on the original...
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...time are peculiarly applicable to such bills. See Whiting v. Bank of United States, 13 Pet. 6, 13, 14, 15, 10 L.Ed. 33; Shelton v. Van Kleeck, 106 U.S. 532, 27 L.Ed. 269; Central Trust Co. v. Grant Locomotive Works, 135 U.S. 207, 10 S.Ct. 736, 34 L.Ed. 97. Street, Federal Equity Practice § ......
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... ... can be assigned on such a fact, and it is, therefore, not ... properly pleaded. Shelton v. Van Kleeck, 106 U.S ... 532, 1 Sup.Ct. 491, 27 L.Ed. 269 ... When ... such bill of review is based upon newly discovered evidence, ... ...
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Parks v. Parks
...60, 22 L.Ed. 764; Buffington v. Harvey, 95 U.S. 99, 24 L.Ed. 381; Thompson v. Maxwell, id. 391, 24 L.Ed. 481." Shelton v. Van Kleeck, 106 U.S. 532, 534, 1 S.Ct. 491, 27 L.Ed. 269. See, also, Rudolph v. Hunt, 52 App.D.C. 343, 345, 286 F. 1007, 4 Section 63, Tit 14, D.C.Code, Supp. III, 1937.......
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