Winchester v. Winchester

• Decision Date: 21 October 1876
• Citation: 121 Mass. 127
• Parties: Charles Winchester v. George C. Winchester
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 127

Charles Winchester v. George C. Winchester

Supreme Court of Massachusetts

October 21, 1876

Argued October 6, 1876; January 13, 1876

Worcester. Bill in equity for the performance of an award and the settlement of the affairs of a partnership.

The case was heard at chambers in Boston, (the plaintiff being represented by W. A. Field, and the defendant by B. F. Thomas & G. A. Torrey,) before Ames, J., who on October 23 1875, made a decree, purporting upon its face to be by consent of the parties, requiring the defendant to pay certain sums of money and to execute certain conveyances appointing a receiver, and referring the case to a master. On November 22, 1875, the defendant appealed from that decree.

On January 5, 1876, the plaintiff applied to the full court sitting in Boston, to dismiss the appeal and affirm the decree, because it was made by consent. Notice of this application was given to the defendant, who appeared with counsel, and the matter was argued on January 13, 1876.

Rehearing denied.

W. Gaston & B. E. Perry, for the plaintiff.

T. L. Wakefield, for the defendant.

Gray C. J. Colt & Endicott, JJ., Morton, JJ., absent.

OPINION

By the Court.

The decree appearing to be made by consent, the appeal cannot be sustained. The only way by which the party, in such a case, can have the decree reviewed is by a petition for a rehearing or by a new bill. Downing v. Cage, 1 Eq. Cas. Ab. 165. Anon. 1 Ves. Jr. 93. Monell v. Lawrence, 12 Johns. 521.

Decree affirmed.

On October 3, being the first day of October term 1876 in Worcester, the defendant presented to the full court the following petition:

"To the Honorable the Justices of the Supreme Judicial Court, within and for the county of Worcester, sitting as a full court.

"The petition of George C. Winchester, the defendant in the above entitled cause, respectfully represents that a decree was entered in said case by a single justice on the 23d of October, 1875, and a record was then made reciting that your petitioner had consented and agreed to the entry of said decree; whereas in truth and in fact your petitioner never consented or agreed to said decree, and the same was made without his consent, without hearing his defence, or giving him an opportunity to be heard thereon, and without the plaintiff's bill having been taken as confessed against your petitioner; that said decree is wholly erroneous and does not conform to the pleadings in the case, and the plaintiff is not entitled upon the pleadings to the relief given in said decree; that your petitioner appealed from said decree to the full court, being advised that his remedy was by appeal, and his said appeal was subsequently dismissed by the full court for the reason that by the record it appeared that said decree had been entered with his consent; that all the subsequent proceedings in said case have been had against his consent, and subject to his right to apply for a rehearing of the case to the full court at its next session for the county of Worcester, where the case is pending; that your petitioner has a true and substantial defence to the plaintiff's bill on the merits, which, without his fault, has never been heard by this court, and he desires to be heard thereon; and he craves leave to refer to all said proceedings.

"He therefore prays that said record may be amended by striking out therefrom the clauses reciting the consent of your petitioner to the entry of said decree; and that your petitioner may have leave to enter an appeal to the full court from said decree, when so amended; and that said decree and all subsequent proceedings in the cause may be set aside and the case reheard, and such decree made as justice and equity may require.

"Geo. C. Winchester."

"We respectfully certify that in our opinion the above entitled cause is proper to be reheard before this honorable court.

"Geo. F. Hoar,

"T. L. Nelson."

The court gave leave to file the petition, and ordered notice to the other party, and an argument thereon was had on October 5, 1876.

G. F. Hoar & T. L. Nelson, for the petitioner, cited 2 Dan. Ch. Pract. (4th Am. ed.) 1472, 1473, 1476, 1477, 1478, 1575; Story Eq. Pl. §§ 405, 412, 421, and notes; Thompson v. Goulding, 5 Allen 81, 82, and cases cited.

W. Gaston & W. A. Field, contra.

Gray C J. In the argument of the learned counsel for the petitioner, great reliance was placed upon the practice of the English Court of Chancery as to rehearings. But the practice of that court affords no rule to govern a court of last appeal, whose judgments have the strongest presumption in their favor, and cannot be freely reconsidered without unreasonably protracting litigation and disregarding the claims of other suitors to the attention of the court.

After final judgment in the House of Lords, or in the Judicial Committee of the Privy Council, no rehearing is allowed unless for the purpose of correcting mistakes in the form of the decree. Broughton v. Delves, 1 Ridgeway P. C. 513, 514. Stewart v. Agnew, 1 Shaw 413. Tommey v. White, 3 H. L. Cas. 49, and 4 H. L. Cas. 313. Rajundernarain Rae v. Bijai Govind Sing, 1 Moore P. C. 117. The Singapore, L. R. 1 P. C. 378, 388. In Stewart v. Agnew, Lord Eldon quoted, from an opinion delivered in the Irish House of Lords in 1787, while that house was an independent and supreme judicature, the following quaint but forcible statement: "If causes were to be reheard, there would then be no...