Randall v. Peckham , 11 R.I. 600 ( 1877 )

This was a petition for a rehearing. Subsequently the title only of the petition was amended, so as to style it a petition for rehearing and review, but without altering the body of the petition.

The decree was entered July 21, 1877, and was a final decree so far as to dispose of every question and of costs, so as to leave no question open between the parties.

The respondent to the petition appears voluntarily, and moves to dismiss it as not filed in time, and as peradventure the court might consider it to be a bill of review, demurs to it.

The petitioner, in support of his motion, cites Hodges v.New England Screw Co. 3 R.I. 9. The petitioner there filed a petition for rehearing, and for leave to file a supplemental bill in the nature of a bill of review. The petition was filed just within a year after the entry of the final decree dismissing the bill. The court in their opinion hold the entry of the decree under our practice to be equivalent to the English enrolment, and go on to say that a cause may be reheard any time within a year, and that they adopt this rule from analogy and as a rule of practice merely.

A great deal of the confusion in equity practice on the subject of rehearing is owing to the loose manner in which the expressions, reargument and rehearing, have been used. The word rehearing has been used to denote a reargument upon the same facts before decree, a technical rehearing before enrolment, and sometimes generally for any mode of reexamining a case.

Upon the question of what is a final decree, a question which is somewhat connected with the practice as to rehearing, there has been as much confusion. And it grows out of the fact that the question is sometimes what is final within the meaning of some statute so as to be appealed from.

In Forgay et al. v. Conrad, 6 How. U.S. 201, Taney, C.J., says that a decree may be final on the merits, and may yet not be final in a technical sense. Whiting et al. v. The Bankof the United States, 13 Pet. 6, 15; Michoud et al. v. Girodet als. 4 How. U.S. 503; and see Holmes v. Jennison et als. 14 Pet. 540, 562; Gibson et al. v. Rees et als. 50 Ill. 383. Strictly, a final decree was only one enrolled. Daniel's Chan. Prac. 1000, 1010. There could be no execution until enrolment. Gilbert For. Rom. 171, 183; Mitford Eq. Pl. by Tyler, 470.

In England, after a decree had been drawn by the registrar, and before it had been entered, it could be corrected on petition. After entry the proceeding was technically a rehearing, or a bill in the nature of a bill of review, as the case might be. Story Eq. Pl. § 421, note. This might be granted upon the record as it was, or for new matter. But it was necessary in some cases to enroll even an interlocutory decree.

Now if the court in Hodges v. New England Screw Co.3 R.I. 9, afterholding that in our practice entry was equivalent to enrolment, mean to say that a technical rehearing may be had within a year after enrolment, then the decision is contrary to the whole course of English decision, and of American decision also, in those states whose chancery practice is of any authority.

If they meant to use the word rehearing to include all modes of reexamination, and to say that a bill of review would not lie after a year, then that is contrary to the general course of practice, and was usurping a power which belonged to the legislature alone.

And although the court do not in so many words say that there could be no reexamination of a cause in equity after a year, the whole reasoning of Judge Greene leads to that conclusion; otherwise there was no sense in referring to the analogy of cases at law, as at law no rehearing could in any case be had after a year, except under the power formerly exercised by the General Assembly.

It was the first time the question had been raised. And the want of care with which the chief justice uses language is shown by his reference to the case of Brown et al. v. Aspden et als. 14 How. U.S. 25. He cites this case as holding that the Supreme Court of the United States do not grant a rehearing unless desired by some member of the court. What Taney, C.J., did say was, that in a court of chancery appeal, such as the English House of Lords and the United States Supreme Court, there is no such thing known as a technical rehearing; that a reargument may be had, but even this will not be had after judgment entered, unless desired by some member of the court, and in no case after the term.

And it is a matter of notoriety that many of the positions advanced by the court in the case of Hodges v. New EnglandScrew Co., already referred to, were most severely criticized by the profession at the time, and are very inconsistent with the general course of judicial decision since.

But if this limitation of a year was valid as a rule of practice, is it in force now?

It is to be noticed that when Ames, C.J., who did know something about equity practice, came in as chief justice, a new set of rules was made (in July, 1857), and by Rule No. 83, now in force, it was provided that in all cases where these rules do not apply, the practice shall be regulated by the English practice so far as applicable, or as furnishing just analogies rather than positive rules.

The old rules in force at the time of the decision in the Hodges case made no reference to the English practice, except, perhaps, indirectly, by referring to the practice of the United States Supreme Court.

And I have no doubt this was intended to introduce the English practice as to rehearings and reviews, so far as consistent with our usages.

The practical distinction between rehearings or any proceedings before final decree, and bills of review, and a distinction which will reconcile many apparently conflicting decisions, seems to be, that until the decree is so far final as to settle all questions, including costs, and to dismiss the parties out of court, they are in court and do not need a new summons. After that, a bill of review is necessary.

And the difficulty has been to decide when the parties are to be considered as out of court. A judgment or decree is for many purposes considered under the control of the court during the term. But in equity, decrees are entered during the vacation of the law terms. And as the court in chancery is always open, it was held in Maryland, after some conflict of opinion, that the term in chancery should be considered as continuing until the new term began. Unless such a course is adopted, there would be some confusion as to decrees entered in vacation.

The United States Supreme Court by Rule No. 88 allows the Circuit Court, in cases where there is no appeal, to grant a rehearing at any time before the end of the next term.

It seems to me that we have adopted the English practice, that it is the better practice, and that we ought to adhere to it.

If we are to consider the entry of the final decree as equivalent to the English enrolment of it, then the parties in this case are out of court.

Motions to dismiss the petition for a rehearing refused,and the demurrer overruled.

The petition for a rehearing was then heard and refused, and a decree dismissing the petition and giving costs to each respondent was entered November 10, 1877.

NOTE, Compare — Leach v. Jones, ante, p. 386.