Nolan v. Urmston ( 1848 )

Read, 3.

The statute provides that a bill of review may be filed, “ at any time within five years next after rendering such decree.”

It is contended in support of the plea, that all judgments and decrees are of the first day of the Term. For some purposes, the statute gives them effect from the first day of the Term, although rendered at a subsequent day. But they would not have this effect, unless the statute, in express words, gave them such effect; or unless, for the purpose of justice, the fiction that the Term was but one day, was applied. But this is never permitted to prevail, when its application would cut off a distinct right.

The statute gives every party a right to file a bill of review, within five ■ years next after rendering such decree. A decree is not in fact rendered, until the day it is pronounced and entered ; from that day, within five years next after, a bill of review may be filed. Time is counted from the day on which the decree is pronounced or rendered, and the act to be done, is the filing of the bill. This is all; it is not necessary that service, of process should be had, or even that it should be issued, to bring the party in time. True, after the bill has been filed, and jurisdiction thus acquired, it should be prosecuted with due diligence. But in this case, the bill was filed in time, and process issued and returned to the next Term of the Supreme Court. This is diligent prosecution. Plea Overruled.