Hughes v. Jones , 2 Md. Ch. 289 ( 1851 )

The Chancellor :

This case is brought before the court, upon a petition to open the order pf the 27th of April last, and rehear the cause; in other words, for liberty to file a supplemental bill, in the nature of a bill of review, upon the ground of new matter discovered since the order, and there can be no doubt of the regularity of this mode of proceeding, and of the power of the court in a proper case, to grant the application. Burch et al. vs. Scott, 1 Gill and Johns., 393.

It is likewise equally clear, that these applications address themselves to the sound discretion of the court, and do not rest upon a foundation of strict right, which may not be disregarded. Dexter vs. Arnold, 5 Mason, 315.

The court is at liberty to look into all the circumstances of the case, and if upon full consideration of all of them, it comes to the conclusion, that opening the decree, and rehearing the cause, would be productive of mischief to innocent parties, or is, for any other reason inexpedient, it may refuse to do so, though the facts, if admitted, would vary the decree. Young vs. Keighley, 16 Vez., 348.

In this case, the bill was filed on the 11th of May, 1840, and had been depending nearly eleven years, before the order in question was passed. The estate of Jesse Hughes, the defendant’s testator, has been kept open all that time, because, from the unliquidated nature of the claim, it was manifestly impossible to set apart a sum certain to meet it. If, then, the litigation is now reopened, and the parties on both sides permitted to ransack the county again for evidence, it is impossible to say when it can be brought to a conclusion, and in the mean time, the estate of the deceased must remain unsettled, in the Orphans Court.

When the order of the 27th of March last was passed, upon the petition of the defendant, special care was taken to guard the complainant against any danger, which might result to him, from the introduction of the new evidence, proposed to be taken, by the proviso, that the new proofs should not delay the hearing of the cause, unless the complainants should ask for delay.

The complainant, however, did not ask for delay, and the cause, after having been depending for nearly eleven years, was, with the consent of both parties, submitted to the court, after an elaborate and able discussion at the bar, by the respective counsel.

Thé petition, in this case, states very clearly what the new matter is, and in this respect, is entirely free from objection, but it does not state, that by the use of reasonable diligence, the knowledge of the new matter, might not have been acquired, in time to be used when the decree passed. The qualification of the rule, which entitles a party to a bill of review, upon the discovery of new matter, pressing upon the decree, subsequent to the period when it could have been used, that the matter must not only be new, but such as the party could not have known by the use of reasonable diligence, is as firmly settled as the rule itself. This qualification was rigorously applied by Lord Eldon in the case of Young vs. Keighley, 16 Vez., 348, though a strong intimation, if not a positive opinion, is expressed by him, that by refusing the application then made for leave to file a bill of review, he was deciding against the justice of that particular case, deeming it better, as he said, that individual injury should be inflicted, than that rules established to prevent general mischief, should be broken down. The same doctrine has been fully sanctioned by Chancellor Kent in Wiser vs. Blakely, 2 Johns. Ch. Rep., 480, and in other cases, and stands supported by the high authority of Mr. Justice Story, in the case in 5 Mason, before referred to, and in his commentaries on Equity Pl., section 414.

Any laches or negligence, by the party making the application, will destroy his title to this kind of relief. This is abundantly shown by the authorities which have been cited, and by many others to be found in the books.

The petition, in this case, alleges, that Joshua Reece, by whom the new facts are proposed to be proved, lived in the family of Jesse Hughes, before the year 1815, and until after the death of Josiah Hughes, which occurred in 1821. That the said Reece, removed from Somerset county many years ago, that he has been a seafaring man, engaged for many years commanding a vessel trading from Baltimore down the Chesapeake bay to the western shore of Virginia, and elsewhere, and that the petitioner was not aware, until within the week succeeding the 28th of April, 1851, that he knew, or could testify to, the facts stated in the petition.

An answer has been filed to this petition, and whilst the defendant neither admits or denies that the witness will, or can .prove the facts relied upon, it denies that it has been many years since he removed from the county, and avers that it has been but a few years, and long since the pendency of the suit, and that he has lived in Baltimore ever since, and has always been accessible to the complainant.

The case is brought before the court upon the petition and answer, no affidavits on either side having been filed. And in view of the facts thus disclosed, and of the principle which must govern the court in exercising its discretion, I do not think it would be proper to grant the application.

The great point in controversy in the cause, had reference to the title to the negro Isaac, and a mass of testimony relating thereto, had been collected by the parties. The question chiefly disputed, had respect to the possession of this slave, it being supposed that the title -would be adjudged to be in that party who had the possession. The petitioner does not allege that he did not know before the order of the 29th of April was passed, that Joshua Reece lived in the family of Jesse Hughes, and there is no reason to suppose he did not know it. It is true, the complainant did not attain his majority until the year 1839, when he took out letters of administration on the estate of his father, but between that time and the date of the order of April, 1851, twelve years intervened, of which upwards of ten were spent in this litigation, and during that time it certainly was the duty of the complainant to ascertain by inquiries, properly directed, who were likely .to give information upon the subject. Nothing would seem to be more natural in such circumstances, than that he should inquire who constituted the family of his uncle, Jesse Hughes, during the period in question, and it cannot well be doubted that he could readily have informed himself, and have secured the proof of the witness, if he had taken the necessary steps for the purpose. The allegation in the petition, that the proposed witness removed from the county many years since, is denied by the answer, which avers that he not only did not remove from the county many years back, but that it has been only a few years, and long since the commencement of this suit.

Now, it appears to me, under these circumstances, that it would be contrary to the settled rule of the court upon this subject to permit this same question to be relitigated.

I cannot think the complainant has used “reasonably active diligence in the first instance,” to procure the testimony of this witness. He knew, or might have known, that he was a member of the family of Jesse Hughes, from the year 1815, until after the death of Josiah Hughes in 1821. He lived in the county of Somerset until some time after the commencement of this suit, and in Baltimore after he removed from Somerset, and there is no reason to doubt that he might very readily have been communicated with by the complainant, and the information he possessed procured in time to be used before the order now proposed to be opened, was passed.

It certainly seems to me most obvious, that there has been laches or negligence, in this respect, and that it would be a dangerous relaxation of the rule to grant a rehearing of an order, or decree, passed upon a full hearing of both parties, upon the ground now relied upon.

There is, moreover, another objection to opening again this protracted and expensive litigation, which is not without its weight. It was observed in the opinion delivered in April last, that the exception taken by the defendant to the jurisdiction of the court, was seriously felt, and an intimation was thrown out that if this exception had been presented at an earlier stage of the cause, and before it had, at great expense, been brought to a hearing upon the merits, it might have met with a different reception.

Now, this objection still stands, and the weight of it is still felt, and I entertain a grave doubt, whether, considering it in this light, it would be proper to recommence the litigation, and subject the parties to a further and indefinite accumulation of costs. It was one thing to say, that after a heavy expense has been incurred in preparing the cause for trial upon the merits, and when the record up to the moment of the argument disclosed no objection to the jurisdiction of the court, but, on the contrary, contained proceedings which pre-supposed an 'acquiescence in the jurisdiction, that an objection to the jurisdiction thus taken should not prevail, and another and a very different thing to start the parties afresh in search of new proofs and upon a new course of litigation, involving necessarily additional and heavy expense. I overruled the objection to the jurisdiction, upon the special circumstances of the case, and certainly, in part, because it seemed to me inequitable at that stage of the cause to turn the plaintiff round to his action at law, which I saw must be fruitless; but I am very far from being so clear, with reference to the power of the court to grant'the relief prayed by this bill, as to feel justified in taking a step which must be productive of further expense and delay..

•The rule as we have seen, is, that leave to file a bill of review may be refused, although the facts, if admitted, would change the decree, where the court, looking to all the circumstances, deems it productive of mischief to innocent parties, or for any other cause unadvisable. The doubt I entertain as to the jurisdiction of the court, does, in my opinion, render it unadvisable to put this cause in a new course of litigation, indefinite in duration- and in expense, for it cannot be doubted, that evidence counter to the proof now proposed to be offered by the complainant, will be introduced by the defendant. Indeed the evidence already produced since the hearing, show, that there will be no difficulty in procuring such proof.

Isaac D. Jones, and John H. Done, for Complainants. W. W. Handy, John VV. Criseield and Cornelius McLean, for Defendants.

The petition, therefore, must, in my opinion, be dismissed.

The counsel in this cause whose names should have been in- . serted in the previous report, are: