Holmes v. Remsen — 7 Johns. Ch. 286

Majority

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Holmes and others against Remsen and others.

Headnote

After a cause has been argued at law, on a settled case in the Supreme Court, and a judgment rendered, and a subsequent application to that Court to have the case amended, and the cause re-argued, has been refused, Chancery will not interfere.

A decree, dismissing a bill upon its merits, is conclusive until reversed, and is a good plea in bar to a second bill for relief on the same subject matter.

THE bill was filed, the 27 th of January last, by the plaintiffs, William Holmes, George Caines, and Andrew S. Garr, as trustees for the creditors of Frederick Mullett, an absent debtor, against the executors of Isaac Clason, deceased, and others. The bill detailed the previous history of the case. The material facts will be found in the report of the case in this Court; ( 4 Johns. Ch. Rep. 460 —490.) and of the suit at law, afterwards brought in the Supreme Court. ( 20 Johns. Rep. 229 —268.), The plaintiffs stated, that the cause was tried in April, 1821, and a verdict taken for the plaintiffs, subject to the opinion of the Court, on a case agreed to be made. That the case was made and argued in May term, 1822, and a judgment given for the defendants in August following, founded on the compulsory payment of the money in London, under the judgment and execution of the Mayor’s Court, on a foreign attachment. That the day of the commencement of the suit here, in the Supreme Court, was, by mistake, omitted in the case settled for argument. That, on the ground of such omission, the plaintiffs applied to that Court, to have the case amended, and the cause re-argued, having obtained an order to stay proceedings on the judgment, in the mean time. That the omission of the time of the commencement of the suit, escaped tlie notice of the counsel, until after judgment in the cause. That the plaintiffs deem this fact

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Important and decisive j the suit having been commenced on the 11th of August, 1818= That the motion for the amendment, and second argument, was made in October, 1822; and, at the request of the plaintiffs, postponed until January term last, when the motion was argued, and denied with costs. The fact of the commencement of the suit, on the 11th of August, 1818, was not denied; but the motion was opposed, on the ground that it was too late to allow of an amendment. The plaintiffs further stated, that they believed that the proceedings under the attachment, and the judgment and payment in London, were notm invitum, but were fraudulently contrived by the defendants, to evade the attachment law of this state. That, after notice of the appointment of the plaintiffs as trustees, the defendants had power and time to have withdrawn the money out of the reach of the attachment law of England. That the defendants had good reason to believe, that the money would be so attached; and had time to remove it and pay the plaintiffs. That the defendants permitted the suit to proceed under the attachment, unopposed and fraudulently, in order to defeat the plaintiffs, and did not plead the pendency of the attachment of the plaintiffs here, prior to the attachment in England, nor their previous suit in the Supreme Court here, either of which facts would have been a good defence to the suit in London. That the facts, showing a collusion between the defendants, did not come to the knowledge of the plaintiffs until after the last October term. Prayer, that the executors of C. be decreed to produce letters and papers in their possession, relative to the matters above stated, and deposit them in Court for the inspection of the plaintiffs; and consent to an amendment of the case, and a second argument of it in the Supreme Court; and that they be enjoined, m the mean time, from perfecting their judgment, fee., and for general relief.

There was a demurrer, by the executors of C=, as to part, and a plea and answer as to the residue of the bill. The de=

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murrer was to so much of the bill, as prayed a decree that the defendants should consent to the amendment and a second argumentof the case in the Supreme Court, and for a discovery Qf any proceedings in relation to the suit at law, subsequent to the2tith of December, 1818, or the filing of the bill on that day : 1 Because, there is no new matter in the bill, on which the Court can grant relief, or by reason of which the defendants ought to make discovery : 2. There is no matter stated, as a foundation of equity, for this Court to give relief in relation to the suit at law, but what is properly cognisable in the Supreme Court, and of which the defendants have had the benefit in their application to that Court.

Plea, that the plaintiffs filed their bill, the 29th of December, 1818, (stating the substance of it,) to which the defendants answered the 20th of May, 1819, to which a replication was filed, and the cause heard the 13th of June, 1820, and a decree entered the 17th of July following, dismissing the bill, which decree was duly enrolled ; alleging that the decree was not obtained by fraud or collusion, and denying that the judgment in the Mayor’s Court of London was obtained by fraud or collusion, and pleading the decree, above mentioned, in bar.

The answer, in support of the plea, denied all the charges of fraud and collusion, relative to the attachment, and stated the particular facts concerning it; alleging, that the defendants never knew of the attachment until after judgment was rendered thereon, the 1st of December, 1818.

P. A. Jay and S. Jones, for the defendants. They relied on the judgment of the Supreme Court as conclusive; and on the decree of this Court dismissing the bill.

Caines, contra.

He cited 2 P. Wms. 69. 426. 2 Equ. Cases Abr. 159. 1 Ves. & Bea. 168. 4 Price, 135. 2 Vesey, 135. Dickens, 469. 2 Cox, 368. 2 Madd. 230.

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3 Vesey, 255. 1 Harr. Ch. Pr. 395. 7 Vesey, 245. 1 Vern. 203, 204.

One material ground of complaint is, that after argument and judgment in the Supreme Court, upon a case made and settled a year preceding the argument, that Court refused to permit the case to be amended, and to order a second argument. The plaintiffs insist, that the case omitted to contain, by mistake, a material fact; and they applied to the Court, by motion, for leave to have the case corrected. The motion was opposed, argued, considered, and denied, with costs; and this Court is now called on to decree that the defendants, who are executors of Clason, permit the case to be amended, and re-argued at law. To this part of the bill the defendants have demurred; and it strikes me as one of the most extraordinary instances that ever has occurred of an attempt to employ the powers of this Court to review and control the practice of a Court of law. There is no matter stated, as a foundation of equity, for this Court to give relief in relation to the suit at law, but what was properly cognizable by the Supreme Court, and upon which the plaintiffs have had the benefit of an application to that Court, and upon which that Court has exercised its judgment. It would be extremely unfit and irregular for this Court to assume the review and cognizance of such a question, properly addressed to the sound discretion of the Supreme Court; and it must be presumed, that the decision was according to the course and practice of that Court. There would be no bounds tú such an interference, if the precedent was once established; and it would lead to disorder and confusion. Equity never does interfere to compel a re-examination in a Court of law, of a point already discussed and decided, and over which the Court had full jurisdiction. The principles and authorities contained in the case of Simpson v. Hart,

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( 1 Johns. Ch. Rep. 91 .) apply ¡¡with entire force to the present bill; and though the decree in that case was. reversed in the Court of Errors, yet the doctrine of the cáse was admitted, and a majority of that Court differed from me only in the application of acknowledged principles to that particular case. It is impossible to admit, upon any sound principle, or to bring within the reach of any adjudged cases, the authority of this Court to require the amendment of a settled case in the Supreme Court, after such case had been argued and judgment rendered, and after the Court had refused to permit the amendment. It would be interfering with the ordinary proceedings, and practice, and discretion, of that Court; and to require that the parties should go to a second argument in that Court, after judgment, and after that Court had refused to hear a second argument, would be monstrous.

I shall, therefore, allow the demurrer, and allow the defendants their costs upon the demurrer, according to the practice declared in Gregory v. Reeve. ( 5 Johns. Ch. Rep. 232 .)

The plea, with its auxiliary answer, ought also to be allowed; for it constitutes a perfect bar to any discovery and relief here upon the subject matter of the bill. The former decree of this Court, dismissing the bill upon the merits between these same parties, and upon the same subject matter, without reservation, is conclusive, until reversed. This is a very clear and well settled rule. It stands in no need of illustration by authority and argument. All fraudulent collusion asserted in the bill, is denied in the answer supporting the plea. The usual course, when the plea is allowed upon argument, and consists of matter in pais, is to permit the plaintiff to take issue upon it, if he thinks it not true in point of fact; and if it be admitted, or found to be true in fact, the suit is barred, and at an end, so far as the plea extends. But that course cannot be re

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quisite in this case, as to the plea; for the bill itself admits the decree, and the suit in which it was rendered, and the plea was founded on matter of record, verified by the Master’s report. The suit was set forth in the plea more at large, and in extenso; but the existence of the suit and decree, as charged in the plea, is sufficiently admitted in the bill, to render any further inquiry into the truth of the plea unnecessary.

I shall, accordingly, unless the plaintiffs wish to traverse the matters of fact in the answer, decree, that the bill be dismissed. After the very full discussion of the point in controversy, both in this Court and at law, a further bill upon the pretences set up, has the appearance of obstinate contention, which the plaintiffs were not required by any of the duties of their trust to indulge. If the former decree of this Court, or the judgment at law, were deemed to be erroneous, the plaintiffs should have pursued their ordinary remedy by appeal or writ of error, and not have sought a re-litigation before the same tribunal. I shall dismiss the bill, with costs, unless the plaintiffs’ counsel should think It material to reply to the answer accompanying the plea, as to the questions of fact. If they should wish to traverse the answer, I am unwilling to deprive them of the opportunity, and shall, therefore, add, that the bill be dismissed, with costs, unless the plaintiffs shall, within twenty days, take issue in fact upon the answer, and file a replication for that purpose.

Decree accordingly.