Central Georgia Bank v. Iverson , 73 Ga. 19 ( 1884 )

Clarke, Judge.

Benjamin V. Iverson, as trustee for his wife, Juliette, and for his minor son, JamesS., executed to Collins &Son a deed to certain realty of the trust estate. The deed, though absolute and for the fee simple on its face, was made to secure a large indebtedness of said trustee to the grantees. The latter executed an obligation to re-convey on payment of the debt. On petition of the trustee and the written consent of his wife, as well as of a guardian ad litem for said minor, the chancellor had, at chambers, passed an order allowing the transaction to be made, upon the ground that the debt was contracted for the benefit of the trust estate. Collins & Son having assigned the debt to plainti;: in ez-ror azid coziveyed the land to the same, as the accompanying security, the latter filed a bill against defendants in error to procure an enforcement of the debt against said land. Answer was made denying the liability of the trust propei^ to said claim, and denying that the debt was made for the benefit of the trust. At the trial, the jury found that the trust estate was not bound for the debt. Complainant made no motion for a new trial.

Tlmee years, lacking three days, after the date of said finding, complainant filed the present bill, praying to have the verdict vacated and a new hearing • allowed, on the ground that the finding was illegal. On demurrer, the bill was dismissed. That dismissal is here for review.

Counsel for plaintiff in ezror denominate the bill a bill of review; and having filed it before the expiration of three years, insist that it is not barred by time. They further maintain that there is ezzough on the face of the pleadings in. the original case to show that the verdict ought not to have been rendered.

Because they think that they can make that appear, they insist that, by this bill, they can have relief against the verdict.

1, 2. Now, either the verdict is so completely foreign to, and unsupported by, the pleadings as to be utterly void, or it is not. If it is, complainant needs not to have it reviewed or reversed. If it is not, then it is good until set aside.

It is urged that the pleadings did not authorize the admission of such evidence as was indispensable to support such a verdict, and, consequently, that the record itself shows the verdict to have been illegal. It is thence argued that, by a bill of review, it may now be reversed.

"VVe reply that the bill alleges the liability of the trust estate, and the answer denies that the debt was due by the trust, or made for its benefit. If the state of the pleadings was not such as to authorize it, yet if the evidence was admitted without objection, or without objection maintained, the jury might make, on the question of liability, a valid finding upon such evidence. This court could not ascertain from the pleadings alone that the j ury erred. Hence, the exigencies of the plaintiff in error call for an inquiry into the evidence on which the verdict was founded, as an indispensable means of ascertaining whether or not the finding was legal. It seems, therefore, plain, that the setting aside of this verdict must fall under the ordinary rules for vacating verdicts.

The Code (§2919) expressly recognizes bills of review, and prescribes, as the statutory limitation to such a bill, the period of three years from the date of the obnoxious-decree. The allowance by statute (Code §4211) of motions for new trial in equity causes does not supersede bills of review. Such a bill may have an office to perform beyond the reach of such a motion. If, for instance, after the adjudication of an equity cause, other parties should become so interested in the subject-matter of the decree as to make it needful to have it reversed for their benefit, a bill of review may bring in the new-parties and procure the recognition and enforcement of their rights in the reversal. This could not be done by a mere motion for a new trial.

The example offered is not presented as exhaustive of the peculiar functions of a bill of review, but only as an illustration how this remedy may well co-exist with the right of motion for a new trial, notwithstanding the limitations which this decision may declare upon the use of such remedy.

In a case, therefore, in which one should propose by a bill of review to effect something more of what is proper and needful to justice and equity than can be effected by the practice under motions for new trials, we would not hold that the party was confined to the use of the proceeding by motion. But, in the pending case, no new party is sought' to be brought in, and nothing is attempted beyond what a motion for a new trial could have effected. Gall the bill what you please — a bill of review, a-bill for a new trial, or a supplemental bill in the nature of a bill of review, all of which names have, in the argument, been proposed for it — it is simply an attempt to get rid of a verdict which is recognized as in the plaintiff’s way. It is an attempt to do that by the protracted and expensive method of a bill in equity, when it might have been so much more easily and promptly done by a mere motion for a new trial. It is an attempt to do that nearly three years after the time within which the statute would allow such a motion on such grounds to be entertained. It is án effort to do it, unaccompanied by any pretense of ex-' cuse for not resorting to the simpler and prompter remedy. It comes on June 25, 1881, with a confession of want of diligence in not urging rights, while the court, in June, 1878, was occupied in their discussion and solemn adjudication. Its only occasion is the plaintiff’s negligence. It is the' very child of laches.

Commonly a motion for a new trial must be filed within the term of the adjudication attacked. It is only upon extraordinary grounds, of which the party could not avail bimself during the term, that the motion can be after-wards made. Whenever it is made, it stands at once for á hearing, unless deferred for cause or by consent. If one could be allowed to pass by this remedy and file his bill of review, of for a new trial, it could not be returnable earlier than the next term, nor be triable till the second term following the unsatisfactory decision. The exigencies of due service of the bill might still further delay the trial term. How idle would be these legislative restrictions on a motion for new trial, designed, as they are, to expedite justice and hasten the termination of law-suits,, if one could wait nearly three years- and then claim the same advantages by merely writing out his demand in the shape of a bill, and asking for a review and reversal! We cannot believe that the legislature intended to secure so little effect to these limitations.

It is true that mere lapse of time, less than three years, will not be an absolute bar to a bill for review, or to a bill for a new trial. But it is equally true that neither a bill xor a new trial nor a bill for review against a verdict will be entertained, unless some satisfactory cause be shown why the complainant could not, with proper diligence, get the just and needed relief by the motion. 27 Ga., 469; 55 Id., 667; 38 Id., 174; 39 Id., 678; 56 Id., 222, 363. The complainant has not even attempted to show such a case. Having slept over its rights, it has lost them.

Let the judgment below be affirmed.