Cole v. Miller , 32 Miss. 89 ( 1856 )

HaNDY, J.,

delivered the opinion of the court.

This was a bill of review, filed by the appellees on the 24th April, .1856, against the appellants, in the District Chancery Court at Holly Springs, to review and reverse a decree made in that court against the appellees, in January, 1848, for errors on the face of the decree.

The appellants filed a general demurrer to the bill, which was overruled; and from that order this appeal is taken.

The objections urged in support of the demurrer, deny the jurisdiction of the court upon two grounds; and these present the questions for our present examination.

First. It is objected that the land in controversy lies in Tunica county, which was also the place of residence of the appellant; and that by the Act passed in February, 1848, the Yice-Chancery District of Holly Springs, which previously embraced the county of Tunica, was divided, and a new district established, embracing that county, the courts for which were required to be held, and were held at Hernando, and all papers in the court at Holly Springs, touching any proceeding then “ undetermined,” belonging to the new district, were required to be transmitted to the court at Her-nando. It is therefore contended that the bill of review, if it could be brought at all, should have been filed in the District Chancery Court at Hernando.

This position is based on the assumption that it was the intention of the act establishing the new district, to transfer the whole equitable jurisdiction of every character which the court at Holly Springs had acquired over rights in the counties composing the new district, to the court at Hernando. But we do not consider this view reconcilable with the language of the Act. It provides that all papers in the court at Holly Springs, “touching any proceeding in said court yet undetermined,” should be transmitted, &c. A proceeding then undetermined could not, upon any just principle of construction, be held to be embraced in this language; and it must be presumed that such suits as were then determined, and brought to a close by final decree in that court, should remain there with all their incidents, and were not intended to be removed. So far, therefore, as this act in relation to the two District Chancery Courts is concerned, we do not think that the objection to the jurisdiction is well founded.

' ‘ The second objection is, that by the amendment to the Constitution, adopted on the 6th February, 1856, the District Chancery Courts, together with the Superior Court of Chancery, were abrogated from the date of that amendment, except for the disposition of causes then depending therein; and that in virtue of this constitutional provision, the District Chancery Court had no jurisdiction to entertain this bill of review.

This objection presents the question whether, since the amendment of the Constitution, the Chancery Courts are competent to entertain a bill of review upon a decree rendered before the adoption of the amendment, and when the general jurisdiction of the court over the cause was at an end.

It is to be observed that the general act, regulating the practice and proceedings in suits in Chancery, passed at the same session of the legislature at which the amendment to the Constitution was passed, makes no provision in relation to bills of review in cases like the present; and, therefore, we have to determine whether a bill of review upon a decree over which the court had lost its jurisdiction, is such a proceeding as is embraced within the language of the amendment — in other words, whether a cause in which a final decree had been rendered, and the term of the court at which it was rendered was ended, before the adoption of the amendment, can be considered as a “ cause depending” within the contemplation of the amendment so far as to allow the filing of a bill of review.

Some light may be thrown upon the question by considering the nature and character of bills of review.

Such a bill is said to be in the nature of a writ of error; because its object is to have the decree examined and revised. Story, Eq. PI. § 403. Yet it is not considered as a continuance of the former bill, but is in the nature of an original bill. Ib. § 388. Process must be issued and served, and the appearance of the defendant must be enforced as upon an original bill, and defence may be made to it as an independent proceeding. 3 Daniel, Ch. Pr. 1725, 1732. It extends 'only to the decree and the pleadings in the cause, and not to the proofs; its object is specific, not general, and therefore is very properly said not to be a continuance of the former suit. Story, Eq. PI. § 407, 388. But (what is the most important to the present question) it lies only after a final decree. Ib. § 408.

From these characteristics of a'bill of review, it is evident that it does not constitute a part of the original cause, and although it has reference to it, yet that it is an independent proceeding. And it appears to be manifest, that the filing of it cannot have the effect to make that a “ cause depending” which was at the time of filing it, a determined cause, over which the jurisdiction of the court had ended.

There cannot be a doubt but that, in every legal sense, the original suit must be considered as at an end upon the rendering of the final decree, and no longer subject to the jurisdiction of the court after the lapse of the term. Such was its condition when the amendment to the Constitution was made; and as that amendment continued the jurisdiction of the court only in cases then depending, it would be doing violence to language as plain and well defined as any in the law, to hold that it was intended to apply in any case to causes which had been determined by final decree. We are bound to hold that the legislature intended what they have plainly expressed; and as they have clearly stated the extent to which they intended the jurisdiction of these courts to continue, we have no authority to say that they intended it to extend to other cases not within the plain language; but it must be presumed that such cases were intentionally omitted. But if it be a casus omissus we have no power to supply it by construction. Dwarris on Stat. 711, 695.

In opposition to this view of the subject^ it is urged that it would deprive an infant defendant or a non-resident to whom time was allowed to come in and contest the decree, of all benefit of that right. But these cases are exceptions to the general rule that the jurisdiction of the court ceases with the final decree. For in the case of an infant, the right is expressly reserved in the decree, and in the case of a non-resident, it is reserved by the statute; and in either case, the jurisdiction is not entirely at an end until the period allowed has transpired. Until that time, and for that purpose, such cases must be considered as depending and not finally determined. But there is no such right reserved in decrees generally, in order to allow a party to file a bill of review; and in such cases, there is no exception to the general rule.

From the omission of bills of -review, both in the amendment to the Constitution and in the contemporaneous statute in relation to Chancery Courts, it would appear that it was not intended to continue that remedy in cases situated like the one before us. This may work a hardship in some cases; but unless the parties have been guilty of laches, they can, in most cases, obtain the same relief by writ of error that they could have obtained by bill of review; and it is not improbable that the legislature intended to leave them to that remedy, rather than to continue the jurisdiction of the Chancery Courts by authorizing bills of review upon decrees previously rendered.

But whatever may have been the reason of the legislation upon the subject, it is clear that the court below had not jurisdiction, under the language of the amendment, to entertain the bill of review.

The decree is, therefore, reversed, the demurrer sustained, arid the bill dismissed.

A petition for a re-argument was filed, but overruled.