Thomson v. Brooke

• Decision Date: 26 January 1882
• Citation: 76 Va. 160
• Parties: THOMSON AND ALS. v. BROOKE AND ALS.
• Court: Virginia Supreme Court

76 Va. 160

THOMSON AND ALS. v. BROOKE AND ALS.

Supreme Court of Appeals of Virginia.

January 26, 1882

Appeal from decree of circuit court of Fauquier county in the suit of James S. Thomson against John M. Thomson and others, heirs of James Thomson, deceased, for the purpose of selling decedent's land and dividing the proceeds. Decree of sale was rendered in 1858--John P. Phillips, counsel for plaintiff, and James V. Brooke, counsel for the defendants were appointed commissioners to sell, and required to give bond in the penalty of $10,000, with good security. Phillips executed the bond. Sale made to Brandt Kincheloe. Cash payment made to Phillips and bonds executed to and returned by him for deferred payments. Sale confirmed in 1859, and commissioners ordered to collect the bonds as they fell due. Phillips collected until his death, which occurred early in 1860. Brooke then withdrew the remaining bonds and proceeded to collect on them. In the fall of 1861 he collected a large amount of the money and placed it to his individual credit in the Farmers Bank of Virginia at Richmond, without " ear-marking" it in any way. At various times all the distributees urged Brooke to collect the money, and to many if not to all of them, Kincheloe, at sundry times, paid money upon the written orders of Brooke, who was administrator of decedent and counsel for his heirs. Kincheloe paid the entire purchase money. The amount collected in the fall of 1861 and deposited in bank by Brooke perished by the war. On these facts, was the purchaser entitled to a conveyance? The heirs by other counsel, claimed that the purchaser should not be credited by the sums paid Brooke and lost, for the reason that he had not given bond, and had no right to receive the money. Court below at first responded " no" to this inquiry, and held that both purchaser and land were liable for the money paid Brooke and lost. But on a rehearing, it reversed that decree and entered a final decree stating on its face that Brooke was counsel for decedent's heirs exonerating both Kincheloe and Brooke, and directing a conveyance of the land to the former. A bill of review, or petition for rehearing of the last decree (which was entered April 19, 1876), was filed by decedent's heirs, and much discussion ensued as to whether that decree was final, and of the grounds of opening the same by bill of review. Court below refused to reverse the decree as to the liability of Kincheloe and the land, and of Brooke and the heirs appealed to this court.

John A. Meredith, for appellant.

R. T. Scott, James A. Jones, W. W. Crump, for appellees.

OPINION

CHRISTIAN, J.

The court is of opinion that the decree of the circuit court of Fauquier county, rendered on the 19th day of April, 1876, is essentially a final decree. It is a decree which settles all the principles of the cause, directs a disbursement of the fund in the hands of the administrator, directs the payment of costs, and leaves nothing else to be done in the cause, and upon its face declares that " this decree is final." There was certainly nothing left to be adjudicated in that cause. And the finality of such a decree comes within the very definition of the authorities, as laid down by this court in repeated decisions. See the opinion of Judge Burks in the case of Rawlins' Ex'or v. Rawlins and als., and the cases therein cited, reported in the August Law Journal, 1881.

Treating this decree, therefore, as a final decree, and treating the petition filed by the appellant as a bill of review, the question we have to determine is, whether the decree of the said circuit court upon the bill of review is erroneous.

In the view we take of the case, it is not necessary or proper to go into a consideration of the voluminous evidence in the cause.

It is well settled that a bill of review can only be brought upon two grounds--first, upon newly-discovered evidence; and, second, upon errors of law apparent upon the face of the record. As was said by Judge Burks in Rawlins v. Rawliws (supra ) : " The first ground in this case may be laid out of view, because there is no suggestion or pretension that there was any after-discovered testimony. As to errors of law, they must be such as appear on the face of the decrees, orders, and proceedings in the cause, arising on facts either admitted by the pleadings or stated as facts in the decrees. Such errors of law, and such only, may be corrected by a bill of review. But if the errors complained of be errors of judgment in the determination of facts, these can only be corrected by appeal."

Such is the distinction taken by all the authorities. See Story's Eq. Plds. § 407, and cases there cited.

In Dexter v. Arnold, 5 Mason's Rep. 303-311, Mr. Justice Story observes that " in regard to errors of law apparent on the face of the decree, the established doctrine is that you cannot look into the evidence in the case in order to show the decree to be erroneous in its statement of facts. That is the proper office of the court upon an appeal. But taking the facts to be as they are stated to be on the face of the decree, you must show that the court have erred in point of law. If, therefore, the decree do not contain a statement of the material facts on which the decree proceeds, it is plain that there can be no relief by a bill of review, but only by an appeal to some superior tribunal. It is on this account that in England decrees are usually drawn up with a special statement of, or reference to, the material grounds of fact for the decree. In the courts of the United States the decrees are usually general. In England the decree embodies the substance of the bill, pleadings, and answers; in the courts of the United States the decree usually contains a mere reference to the antecedent proceedings, without embodying them. But, for the purpose of examining all errors of law, the bill, answers, and other proceedings are, in our practice, as much a part of the record before the court as the decree itself; for it is only by a comparison with the former that the correctness of the latter can be ascertained."

The same learned judge, in Whiting et als. v. The Bank of the United States, 13 Pet. 6, 14, says: " In England the decree always recites the substance of bill and answers and pleadings, and also the facts on which the court founds its decree. * * * But with us the bill, answer, and other pleadings, together with the decree, constitute what is...