Wieczorek v. Adamski , 114 Ill. App. 161 ( 1904 )

Mr. Justice Stein

delivered the opinion of the court.

First. We find no error in the refusal of the court to grant appellant’s motion. The bill of review as first drawn relied only upon fraud in the committing of perjury at the hearing of the original bill; and after the Appellate Court had ruled that the bill of review was devoid of merit it was entirely proper, after the cause had been remanded, for the court to permit ttíe withdrawal of the answer and the filing of a demurrer. In fact, taking into consideration the ruling of the Appellate Court, it is difficult to see how the chancellor could have done anything else. Flor is this conclusion affected by the showing of the affidavits that at the hearing" which ripened into the decree that was afterwards reversed, the defendants admitted the deed to be a mortgage. The admission ivas for the purposes of that hearing only, and had in it no elements of estoppel. Moreover, the' clerk of the Superior Court certifies to the record before us “ as per praecipe on file herein,” and the praecipe directs the clerk to insert the affidavits of Proudfoot and Anderson. In this condition of the record we will, if necessary, further presume in favor of the regularity of the court’s proceeding that there were other affidavits not set forth in the record that justified its action.

The defendants, although ordered to answer the amended bill, demurred thereto. In Bracken v. Kennedy, 3 Scam. 558, the court say (p. 564): “ The third error questions the right of the defendant to file a demurrer when he was under a rule to answer. This he had a right to do. The filing either of an answer, plea or demurrer was in compliance with the rule.” Dunn v. Keegan, 3 Scam. 292. Appellant’s motion was addressed to the discretion of the court. That the discretion was correctly exercised is apparent when it is considered that if a default decree had been entered for the failure of defendants to comply with the rule to answer, such decree would upon appeal or writ of error have been reversed (as will hereafter be shown) for want of equity, in the amended bill.

Second. The amended bill of review is bad upon its face, and the demurrer to it was properly sustained for a number of reasons :

(a) The present bill differs from the one held insufficient by the Appellate Court only in this, that it now contains the additional allegations of newly discovered evidence. In other ivords, the court is asked to open and set aside its former decree and grant a rehearing on. that sole ground of newly discovered evidence. Before such relief will be granted it must appear that the new evidence is material and of such a character as will produce a different result on the merits on another trial, and that it is not merely of a cumulative or impeaching character. Lewis v. Topsico, 201 Ill. 320; Elzas v. Elzas, 183 Ill. 132. Kone of these requirements is met by the bill. It sets out the original bill, but not the answer (simply saying that on a certain day Frank Adamski “ filed his answer”), and therefore renders it impossible to say what the issues were upon which the case was heard by the court. The issues not being shown and it not appearing that there were any findings of fact in the original decree, it cannot be determined whether the new evidence is material. Non eonstat but that- the answer denied the execution of the deed; and in'such case Adamski’s alleged admissions that appellant and his wife did not know what they were signing would have been wholly immaterial. Again, while in the case of a bill of review for error of law it is not necessary to set forth the evidence heard upon the hearing of the original bill, it is necessary to do so where the bill proceeds upon the ground of newly discovered evidence; otherwise it cannot be determined whether the latter be material, or will produce a different result and be not merely cumulative.

(b) It does not appear that appellant could not, by the exercise of reasonable diligence, have discovered the new evidence before the entry of the original decree. Lewis v. Topsico, supra. No showing whatever is made in that behalf. All that appears is that appellant did not know or suspect of its existence until after the term at which the decree was entered. Why he did not know or suspect, how or when he came to know of the new evidence, and what he did in that direction, upon all those and kindred matters, the bill of review is silent.

(c) As has been shown, the bill in its aspect of being a bill of review for newly discovered evidence is essentially a new one and must be regarded as having been filed when the amendment introducing the new matter was made. That was done June 20, 1901, a little more than ten years after the entry of the original decree. “ It is a general rule that-a bill of review will not be entertained unless brought within the time allowed by the statute for the suing out of a writ of error.” Sloan v. Sloan, 102 Ill. 581; Bell v. Johnson, 111 Ill. 374; Allison v. Drake, 145 Ill. 500. In equity the Statute of Limitations may be availed of on demurrer to a bill where the bar appears on its face, unless an equitable excuse is allege 1 in the bill to avoid the bar. Bell v. Johnson, supra. Here no excuse is alleged.

(d) Appellant was guilty of laches in allowing ten years and over to pass by before setting up the newly discovered evidence. When he discovered it, is not shown. Consistently with the allegations of the bill, he may have discovered it immediately after the term during which the original decree was' entered, that is to say, ten years before he amended his bill. In Exchange National Bank v. Darrow, 177 Ill. 362, an unexcused delay of three years was held to be such laches as would bar relief under a bill of review for newly discovered evidence. While as a general rule the defense of laches must be made by plea or answer, yet such rule does not apply when the bill already states the causes of and excuses for delay. Coryell v. Klehm, 157 Ill. 462. And in Exchange National Bank v. Darrow, supra, the Supreme Court seem to have gone a step further and to have held that the question of laches may be raised by demurrer even where the excuses for the delay are not stated in the bill. So far as appears from the report of that case, such excuses were no more alleged there than here; that is, not at all. Previously, in Kerfoot v. Billings, 160 Ill. 563, where this question underwent a thorough examination" at the hands of the Supreme Court, it had expressly held (p. 573) “ that where a bill shows laches upon its face and fails to set forth any excuse for an earlier prosecution of the suit, the defense of laches on the part of the complainant may be set up under demurrer either general or special.” And see Lloyd v. Kirkwood, 112 Ill. 329.

The decree dismissing the bill of review for want of equity is affirmed.

Affirmed,