Karsten v. Winkelman , 1906 Ill. App. LEXIS 512 ( 1906 )

Mr. Jitstice Ball

delivered the opinion of the court.

Defendants in error filed a motion to dismiss this writ of error for want of jurisdiction in this court, for the reason that a freehold is involved in the final order. It is true that the original suit involved a freehold, and that if plaintiff in error is allowed to file and prosecute his bill of review that a freehold will be again in question, but this appeal is from the order entered by the Circuit Court overruling the motion of plaintiff in error for leave to file such bill of review. If the plaintiff in error is granted all that he asks from this court he will be given nothing more than leave to file his bill of review. A freehold is not involved unless the necessary result of the judgment or decree of the court is that one party gains and the other loses a freehold estate, or unless the decision of the case necessarily involves that issue. Malaer v. Hudgens, 130 Ill. 225; Van Meter v. Thomas, 153 Ill. 65. If a freehold is not involved in the points assigned for error, the appeal is properly taken, to this court. Douglas Park Bldg. Ass’n v. Roberts, 218 Ill. 456. The assignment of errors in this case contains no reference to a freehold, nor is that question before us upon this writ of error. The motion to dismiss the writ- for want of jurisdiction is therefore denied.

Plaintiff in error contends that he might have filed his bill of review without having obtained leave to do so from the Circuit Court. We think this is a mistaken view of the law. 2 Beach Mod. Eq. Pr., Sec. 866, p. 852, says: “For error apparent on the face of the decree a bill of review may be filed without leave; but a bill of review on - the ground of newly discovered matter can only be filed on special leave, which depends on the sound discretion of the court to which the application is made.”

“A supplemental bill in the. nature of a bill of review cannot be filed without special leave.of the court first obtained.” 1 Barb. Chy. Pr. (ed. 1843), p. 364.

In Griggs v. Gear, 3 Gilm. 11, the Supreme Court say: “A party may bring a bill of review for error apparent, as a matter of right, without the leave of the court; but allowing a bill of review for newly discovered evidence, rests in the sound discretion of the court.” To the same effect is Schaefer v. Wunderle, 154 Ill. 581, where the court say: “We are inclined to think that cases may arise where a bill of review upon new-discovered evidence may be permitted, even after an affirmance of the decree here. (Story’s Eq. PL, Sec. 418; Adams Eq., marg. page 417.) But in such cases application for leave to file must be made to the Court of Chancery where the decree was originally rendered, and not to this court.” See, also, Cole v. Littledale, 164 Ill. 632.

The petition in this case is not based upon apparent error, but is founded upon newly discovered evidence. It follows that the right to file it rested in the sound discretion of the chancellor, and therefore application must be made to him for leave to file the petition.

In passing upon the motion for leave to file, the chancellor will consider the petition, the original bill, the reasons why such evidence was not presented in the original suit, and the character and effect of such alleged newly discovered evidence, and then exercise his discretion. The conclusion to which he comes will not be lightly disturbed by an appellate tribunal. Unless it appears that this discretionary power has been abused, we cannot disturb the conclusion of the trial court in this regard. Elzas v. Elzas, 183 Ill. 134. Considering the whole record, we approve the finding of the chancellor that plaintiff in error did not present such a case as gave him the right to file a bill of review.

There is another ground upon which the order entered in this case must be affirmed. The prayer in the petition is based upon the allegation that Wilhelmina Sauer in the original case testified falsely that she was the only child and heir at law of August Hacker, and that the falsity of such evidence was not known to the petitioner until after the final decree was entered therein. • This was the main issue in that litigation. It was presented in the bill, and proof of it demanded by the answer. She gave her testimony nearly eighteen months before the decree was entered by the chancellor. It is somewhat strange that the neighbors and friends of the plaintiff in error did not become voluble until after that issue was finally decided. But passing that question, which raises a serious doubt as to the diligence of the plaintiff in error (Watts v. Rice, 192 Ill. 127; Elzas v. Elzas, 183 Ill. 134), and admitting that Wilhelmina Sauer testified falsely, it is not sufficient to sustain a bill of review. The Supreme Court of-the United States in U. S. v. Throckmorton, 98 U. S. 61, say: “We think these decisions establish the doctrine on which we decide the present case, namely, that the acts for which a court of equity will, on account of fraud, set aside or annul a judgment or decree between the same parties, rendered by a court of competent jurisdiction, have relation to frauds, extrinsic or collateral to the matter tried by the first court, and not to a fraud in the matter on which the decree was rendered; that the mischief of retrying every case in which the judgment or decree rendered on false testimony, given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterward ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases.”

This court, in a well considered opinion, written by Justice Sears (Adamski v. Wieczorek, 93 Ill. App. 357), reached the same conclusion, as also did the Supreme Court of this State in Boyden v. Reed, 55-Ill. 458, where it is said: “The general rule is that evidence that tends simply to impeach testimony given in the former case will not be regarded as sufficient to sustain a bill of review. * * * It is not enough to allege and prove that'false testimony was in fact heard at the time the former decree was pronounced. If such were the general rule, it-would lead to most disastrous results, and many decrees much older than this could be set aside.”

Tested by these authorities the petition in this case is clearly insufficient.

- The order of the Circuit Court refusing to" allow the plaintiff in error to file his bill of review is affirmed.

Affirmed.