Green's Appeal ( 1868 )

The opinion of the court was delivered, November 2d 1868, by

Sharswood, J.

This is an appeal from the decree of the Orphans’ Court of Armstrong county, dismissing the appellant’s petition for review of his guardianship account, as restated by the auditor appointed by the said court to audit his final account as guardian of Ann Jane Dickey, since intermarried with William Summerville. It is now well settled that petitions of review in the Orphans’ Court, as provided by the Act of Assembly of October 13th 1840, § 1, which directs the court to “ give such relief as equity and justice may require,” are to be governed by the principles and rules which prevail in the Court of Chancery as to bills of review, and which have been followed in that court ever since the time of Lord Chancellor Bacon.

A review can only be had as a matter of right in two cases: The first is for error of law appearing in the body of the decree, and the second for new matter which has arisen after the decree. It may also be allowed ex gratia for new evidence as to facts on which the decree was grounded which have been subsequently discovered, and which could not have been procured by the use of due diligence before: Riddle’s Estate, 7 Harris 431; Bishop’s Appeal, 2 Casey 470; Stevenson’s Appeal, 8 Id. 318; Russell’s Appeal, 10 Id. 258; Hartman’s Appeal, 12 Id. 70.

All the five errors specifically assigned in the petition of review in this case were errors in fact in the decree. The allegation as to newly-discovered evidence, even admitting that the refusal of the court below to entertain the petition on that ground was re-examinable here, was not of the character required by the rules of law and equity on that subject. The appellant knew the facts and the witnesses, but he complains that they were then beyond his reach. He should have applied to the court for time to obtain their testimony. As to one of them, Boyle, his own allegation is that he was absent from the county, without showing any effort to obtain his testimony. As all three witnesses were to testify to the same fact, the evidence of any one of them would have been sufficient. The court below were right therefore in dismissing the petition of review.

Appeal dismissed, and decree affirmed at the costs of the appellant.