Gove v. Lyford , 44 N.H. 525 ( 1860 )

Nesmith, J.

The demandant offered in evidence, with the other testimony in the ease, a bill in equity, in which the defendant was plaintiff, and the present plaintiffs were defendants, filed November 24, 1857, to redeem the demanded premises; also the answer of the defendants, and the evidence used in that case; also the docket of the law term of Belknap county, 1862, upon which was found the entry under said suit in equity, “dismissed.” Upon the examination of the decision rendered in that case by the judge, who examined the merits of the controversy, we find his decree was, “The bill must, therefore, be dismissed, with costs.” The defendant now asks that the record may be so amended that it may read, “Bill dismissed without prejudice.”

The consideration of this motion is therefore first presented, and to be disposed of. This court has power to amend its records whenever error has occurred, and there is sufficient on file to amend by; and it can be done on motion, where the original proceedings were had. ' They are not to be allowed if injustice to any one would result therefrom. Saunders v. Frost, 5 Pick. 279; Wendell v. Mugridge, 19 N. H. 109 ; Claggett v. Simes, 31 N. H. 22. If the record be substantially as it was intended it should be when made, then it devolves on the party making the motion to change it, to give substantial reasons why it should be done; otherwise the record remains as the binding decree of the court. That the defendant finds himself reduced to the necessity of changing the legal import and effect of the record already made in the equity suit, will be apparent from the legal construction put upon the language of the record.

In Foote v. Gibbs, 1 Gray 413, Chief Justice Shaw says: “ The authorities, both iu England and in this country, are decisive that a general entry of ‘ bill dismissed,’ with no words of qualification, such as ‘dismissed without prejudice,’ or, ‘without prejudice to an action at law,’ or the like, is conclusively presumed to be upon the merits, and is a final determination of the controversy.” The same question was fully discussed by the same judge, in Bigelow v. Winsor, 1 Gray 301.

In Perrin v. Dunn, 4 Johns. Cases 141, Chancellor Kent said the usual decree in these cases of bills to redeem a mortgage is, that the “bill be dismissed.” Such a dismissal amounts to a bar of the equity of redemption. A bill regularly dismissed upon the merits, where the matter in controversy has been passed upon, and there is no direction that the dismissal be without prejudice, may be pleaded in bar of a new bill for the same matter..

There may questions arise on this subject, whether the decree of dismissal has been duly enrolled, or duly and finally rendered, or whether it amounts to a res judicata upon the substance of the bill. But assuming these points of form and criticism to be properly settled, it would seem to be within the reason of the rule that the decree, dismissing a bill seeking to redeem, when allowed and directed, should conclude the party from a new bill. 2 Story Eq., sec. 1523; 2 Dan. Ch. Pr. 753, 754; Cooper Eq. Pl. 270; Mitford Eq. Pl. 237.

It would seem, therefore, that the request to amend the decree according to the defendant’s motion, would be only to nullify the decision already had upon the defendant’s bill to redeem the mortgage upon the examination of all the proof, and upon the consideration of the whole merits of the case, and without any suggestion of the discovery of new facts or change of circumstances operating favorably to the defendant. '

If there has been any fraud in a judgment rendered against a party, it may be shown by a party or privy, where it may be done without showing any participation in the fraud. Tebbets v. Tilton, 31 N. H. 287. Otherwise the judgment of a court of record, having jurisdiction of the cause and of the parties, and founded on the merits of the case, is binding and conclusive upon the same parties and their privies in any court in this State, until it is regularly vacated or reversed by some court having jurisdiction for that purpose. Hollister v. Abbott, 31 N. H. 442; Barton v. Shannon, 14 Gray 437.

No sufficient reasons are shown to us why the amendment prayed for should be granted; and from the examination made of the evidence furnished to us, we are bound to presume that the record on the docket is substantially what the court intended it should be. The clerk might with propriety extend his record so as to embrace the precise language used by the judge, and make up in this way a more formal decree, expressive of no more than what is comprehended in the term “ dismissed.” The defendant, therefore, is' to obtain no advantage from his motion, and it must be denied.

The more general and approved practice is, as we understand it, that if the defendant has discovered any new matter of which he would avail himself, or when any event happens subsequent to filing an original bill, which gives a new interest or right t'o a party, it should be set out in a supplemental bill. Mitford Ch. 49; Saunders v. Frost, 5 Pick. 279; Eastman v. Batchelder, 36 N. H. 154. It is also well settled that a former recovery may be shown in evidence under the general issue as well as pleaded in bar. 1 Greenl. Ev., sec. 531, 532; King v. Chase, 15 N. H. 9; Chamberlain v. Carlisle, 28 N. H. 540. And the original bill, pleadings and depositions duly taken, with the decree in a former suit, when the same title is in dispute, are admissible as showing the declarations, admissions and acts of the parties who had the same interest in it as the present parties, against whom they are now offered. 1 Greenl. Ev. sec. 551, 552.

Such is said to be the general rule of practice applicable to depositions ; but courts in their discretion limit their use to only such depositions as have been properly taken, and where an opportunity has been had to cross-examine the witnesses. In the case before us that opportunity has been enjoyed.

The examination of witnesses to wills are required to be viva voce when practicable in courts at law.

The proceedings in equity seem to us to have been properly received and used as evidence before the jury. We do not feel justified or called upon to examine at length the facts and evidence which have already been investigated by the court, and settled in the equity proceedings had between these parties. Upon a review of much of it, wre can only say we have no occasion to disapprove of the decision heretofore made upon the questions involving the merits of this case.

Ve think now, there should be

Judgment for the plaintiffs.