State Ex Rel. Brady v. Frenger

• Decision Date: 27 May 1940
• Docket Number: No. 4542.,4542.
• Citation: 44 N.M. 386,103 P.2d 115
• Parties: STATE ex rel. BRADYv.FRENGER, Judge.
• Court: New Mexico Supreme Court

44 N.M. 386

103 P.2d 115

STATE ex rel. BRADY

v.FRENGER, Judge.

No. 4542.

Supreme Court of New Mexico.

May 27, 1940.

Original prohibition proceeding by the State, on the relation of Primitivo S. Brady, against Numa C. Frenger, judge of the Third Judicial District of the State of New Mexico.

Alternative writ quashed and proceeding dismissed.

The remedy by way of a bill of review is not one of absolute right but of sound discretion of the trial court.

J. C. Gilbert, of Hot Springs, and Kiker & Sanchez and Anthony J. Albert, all of Santa Fe, for petitioner.

H. B. Hamilton, of Santa Rosa, for respondent.

BICKLEY, Chief Justice.

This original action was instituted to restrain and prohibit the Honorable Numa C. Frenger, Judge of the Third Judicial District, from proceeding in a certain civil action pending in said court, otherwise then as may be necessary and proper to enforce a decree entered pursuant to a mandate of this court. The case is before us at this time on the question of whether the alternative writ of prohibition duly issued herein should be made permanent.

There was pending in the district court of Lincoln County a certain cause entitled De Gutierrez v. Brady, No. 4433, on the civil docket of that court, in which a decree was entered for the defendant in his cross action to quiet a tax title to certain real estate. The cause was appealed to this court and the decree affirmed (De Gutierrez v. Brady, 43 N.M. 197, 88 P.2d 281) and a mandate duly issued, upon which a decree was entered on the 19th day of May, 1939.

Thereafter (date not given) the plaintiff (respondent here) filed a motion in the district court “to set aside, vacate, and hold for naught the judgment rendered in the above styled and numbered cause,” upon the ground that she had duly paid to the county treasurer of Lincoln County the taxes for which her land was sold; and the tax sale certificate issued and defendant's (relator's) tax deed are void. She alleged certain reasons why she had failed to procure this evidence at the original trial of the case.

We are concerned here only with the question of jurisdiction, which may be stated as follows: Has the district court jurisdiction to act on a motion (in effect a bill of review based upon newly discovered evidence) to set aside a decree of the district court, duly entered as required by a mandate of this court, issued after the cause was affirmed on appeal?

The “Ordinances in Chancery” of Lord Bacon stated the rule regulating bills of review, as follows: “No decree shall be reversed, altered or explained, being once under the great seal, but upon bill of review; and no bill of review shall be admitted, except it contain either error in law, appearing in the body of the decree without farther examination of matters of fact, or some new matter which hath arisen in time after the decree, and not any new proof which might have been used when the decree was made; nevertheless upon new proof that is come to light after the decree made, and could not possibly have been used at the time when the decree passed, a bill of review may be grounded by the special license of the court, and not otherwise.” Spedding, Ellis & Heath's ed. of Bacon's Work, Vol. 15, p. 351.

[1][2][3] We have recently had occasion to hold that a proceeding by bill of review, to correct error apparent upon the face of the record, was proper (De Baca v. Sais, 44 N.M. 105, 99 P.2d 106); and we perceive no reason why it is not the correct remedy to secure a review of a decree on the ground of evidence discovered too late to be available at the original hearing, or on a motion for a new trial; provided, of course, that the strict rules governing this procedure would otherwise authorize it. The district courts of this state have complete and full jurisdiction in all equity cases, including all equity procedure not changed by statute, and the statutory proceeding for a new trial is not a substitute for bills of review. San Joaquin & Kings, Etc., Co. v. Stevinson, 175 Cal. 607, 166 P. 338; 7 Bancroft Code Prac. & Remedies, Sec. 6186.

[4] It is essential to relief through proceedings by a bill of review that the evidence should have been discovered after the rendition of the original decree, and after the expiration of the time provided by statute for the remedy by motion for a new trial; that the evidence could not have been discovered before by the exercise of reasonable diligence; that it is of such a character that it ought to produce a different result on the merits of the case; that it is not merely cumulative of the testimony introduced at the trial.

[5][6] Ordinarily an application must be made for permission to file a bill of review, which must be by verified petition, setting out the facts authorizing the filing of the bill, 19 A. J. “Equity” Secs. 440, 441, and which must be acted upon favorably by the court before such bill can be filed; although it seems the application may be waived by defensively pleading thereto. Jerome v. McCarter, 94 U.S. 734, 24 L.Ed. 136. The remedy is not one of absolute right, but of sound discretion of the trial court. Hopkins v. Hebard, 235 U.S. 287, 35 S. Ct. 26, 59 L.Ed. 232.

That the remedy, if properly exercised, would have been open to the respondent in the absence of an appeal, we have no doubt. Brewer v. Bowman, 3 J.J.Mars., Ky., 492, 20 Am.Dec. 158, and note beginning [103 P.2d 117] at p. 160; Watkinson v. Watkinson, 68 N.J.Eq. 632, 60 A. 931, 69 L.R.A. 397, 6 Ann.Cas. 326 and note p. 332; Novelty Tufting Machine Co. v. Buser, 6 Cir., 158 F. 83, 14 Ann.Cas. 192; Elzas v. Elzas, 183 Ill. 132, 55 N.E. 673; Safe Deposit & Trust Co. v. Gittings, 102 Md. 456, 62 A. 1030, 4 L.R. A.,N.S., 865, 5 Ann.Cas. 941; and see annotations in 76 L.Ed. p. 480; 19 A.J. “Equity” Sec. 423 et seq.; Hardwick v. American Can Co., 115 Tenn. 393, 89 S. W. 735, 1 L.R.A.,N.S., 1029.

[7] There seems to be no material dissension among the authorities on this question, but a more serious one is whether the right to file a bill of review exists after a decision of an appellate court and a decree has been entered in the trial court upon its mandate. We think both reason and the great weight of authority support the right to file such bill. 19 A.J. “Equity” Sec. 426; Safe Deposit & Trust Co. v. Gittings, supra. It...