nDlCBAL .REPORTER,vol.
52.
further .proseclltion, of suit a.gainst complainants, and fromsuing1ont final process for the enforceUlent of a judgment for ren. obtained therein; and upon the same daY'complainants granted leay,e to . fi.lld&.!,upplemen:taI1 lIill ?:p ,the result cause of Lucy O"F-reeman againsttbem for Qf rent, andfluoh facts in conneetioo'therewith'as they-may desire,&nd,praying'such.relieftouchthey may ,be advised;" '. :.' as follows. . : "(l}l A.fter, the filing ott.he. in this caqse, ' tile. defendin against for anti·:L.pC.'iEreeman iU'xeil.Mgelli dnrent upon BB41for,h'l!r dower interest in .the aSJJhowo,Iib.,the,plea<lin8s,."al1,on tl;le 12th c;Jl/oy of .June, A, D., after her demurrer and exception to your orators' original bill lilu.stained. a flnal decree against your orator . .A. Qlay for thousand ail.\;\ ni,ft'llty.ltwoand thirty.lfetlfone.hundredtb'8 dollars; MdeostS.. , On the 1884, on,inotion,tbis jUdgment.or decreeliwas reduced to',two ,two hundtej1: lUll! one-hundredtbs dj)llars, tbe same, jpthe the. . of t'6e saId <1Istrlct court, from whICh there was n,o appeal, Ils,1ittlle'record of 'said cause, doth apptlar. "(2f That said recovery and'payment 'Was not accord1118' rtdJligb1< and .justice" fromtbe opinion of the supreme $loutt of the l1oitedBtateaon your oratdus? appeal to the above decree ofrthiacourtjn this'ca'Use, :lmd:the said Lucy,.O. Freemanougbt in this, caUSa to' be. .decreed or Qe compelled and 'Mjndgoo./tO::restore. th6:8&idsum and CllSPs to your to accept it,88 a her in any accounting hereafter to be ,had in the'e!u!sel" "'{lhll premise!! odnsidered, your orators pray'as 'prayed j n: the origitltlt.bill) aqlltbat the said Lucy! Freeman be adjudgedtlt re$tonLto them fJhe; Wl'ongfJlJJ1 ,by her Ilaid and. for general
.
,,1 :.
ahd as' answered as followS: " , ' , "As to supplemental bill she says that on the 30th day of Septem. bel'; 1880, filM 'Againstthe,complainanli bet ;original bill of'Cbmplaint'in the' cbancel1"court of Bolivar county,; Missl,ldemanding:. of complainant rentst<orthe,dtrwer of respondent in landsuf. bev former ,bilt1<kDavid,I. Field. deceased, 'and whichicomplainantl had wro,llgfully'with. bela'from her. Said :cau$'was' removed to this 'court, and ontbe 10th day bfAugUtit, 1882, the complainant filed against respondent :this, her. original bill in this cause, underwhloh:respondentwl\senjoined her 8uit aforesaid. That afterwards, on the 6th day of March, 1884, after demur. rllr original bill slj,i4 118ving been by this COllrt, said injunction was and the bill dismissed. Inrimking said neetees of dissolution and dismissal, the coutt' offered to l'etainthe- bill for the ptitpoa8 of stating tbe accottntbetweenthe complainant and respondent; yet .oowplairiant, well knowing'ibatshe could appeal this caijse to· tlie supreme cp,urt .of Unitl'ld States, and copld. not appeal the other if it ,should result for le8s than $5,009.00, deliberatelv elected not to have said bill so and thereby to its in so. far' as this account is concetned.Thereupon YQ,ut J,:espondent proceeded with her cause, as she had a right to do, arid said calise .tesulted, on the 16th dll.yof June, ·1884, as ill stated ili .mId supplementiWblll;itl a deoree in favor ·of your respondent aga.ins' the comp4\inant for the sWn!oJl $2,215.00, not the 8um 4011a1'8, &I
, .·
>' filedhe\o answer'totbe"oIigiMlbill, f
FREEMAN t1. CLAY.
wrongfully stated therein, This sum of $2,215.00, and the costs, as stated, the complainant (that is to say, the respondent in that cause) "oluntarily pail! to this respondent, without legal process, on the - - - day oiJuly, 1884;, so that your respondent says that the said decree is in full force and effect, appealed from, unreversed" without any liill of review or petition for rehearing, except that it was voluntarily paid in full, and settled. 'fhe matter is res adjudicata, and cannot be reopened, and tbis court will not do obliquely for the complainant what it could not do directly. It would be to. affect raspondent,:and hold her chargeable, even to the extent of setting aside and a,,nulling tWf.) years a solemn and final decree of this court, merely on tbe gl'0I1tld of enor, by an appealto which she was no party, since the complainant by course aforesaid induced her to believll tbat tbe whole matter was settlf'dand finished,so far as she wllsconr:erned. And respondent submits, as Ii matter· of law, whether a matter purely personal to herself and the,coll1'plainant can be introduced into the accounting of the partnerllhip tweet). C. 1. Field and D. 1. Field, and on this point prays that this answer be taken' as a,demurrer to the said supplemental bill.'" '1 .· On the 19th of November, 1886, it was ordered,that"This be set down for hearing on the plea of Lucy C. Freeman to the 8lJppielIltlntai bill of complaint filed October 4, 1886, as to its Bufficiency in law."·. A£tetwards, on the 11th ofJariuary, 1888, the following, agreement; of record was made: ," "Tli tbis (Iause the complainant, having set the' answer' of Lucy C.Free;. man. to:tlle'supplemental bill.down fO-l' su:fficiencyon the idea tbatltwas. a it itt now agreed, to avoid delay, that the said answer milY be sucp, alld <;(;>ns1dered as if to, and the exceptions of therel,o arid the demurrer filed to. the said supplemental bill be by the court, and, if said exceptions and demurrer be overtUled', tbatthecause may be disposed of finally, complainant being allowed' t6 file exceptions to saidans weI' nunc pro'tunc. It is further agreed that, Bali demm;rer. 'b,e sustained, the proper order, may be) made dis:missingthe;saill suppJeW!lntal bill, witbor without prejudice, as the, c011rt may,detevlIjine,'i',,; .A, great deal of testitl10ny was taken and filed htSlltid ioause; and' '131'1 the: 1st day otJnne, 1888, an order of reference was :made in said in and, by :which an account was direl1ted of the partnership affairs said; and certain directions, not necessary to set forth here, giver!-to the master. 'Said order, among other things, provides that.L"Allother matters arising irithe cause as to the clairiJof the complainant against the defendant Lucy C. Freeman, growing (IUt of the payment· to het by the'complainant 01' the amount of a decree heretofore rendered in her favor by this court, and the disposition to be made of the rental accruing on dower inteJ:est of the said Lucy C. Freeman since her occupation of said plantation, .and otherwise arising in the cause. are reserved to the final hearing; but in taking the account the commissioner will ascertain and report to the court the fental value of the dower in the said plantation occupied by the said Lucy C. F:reeman from the time she was let into possession, and tbe ages of rental asserted by her, and for which'a recovery was heretofore had; and in his report to tbe court he will ascertain the amount of rent duly cl1!1rgeable against the complainant for the use of the entire plantation, as w!lll as the amount due 011 account oohe rental value of the dower allutted tothes-aid Lucy C. Freeman, to the end tbat the court, by a proper decree iii the premises, may dispose of the whole controversy," etc. I
vol. 52.
:on the
day of'Arfigitat; .a ..r.t,here.,.·..w,' .. J t· . " ' . ' S. ..
'due t.o thoe 1st day I: of llaiQ ap;ainst sai1ifil1m, the 26, :and"ol).lthe 1st ,of January, 1889, eJ!:clul1i\ilvof:thedower interest of Mrs., FrOOman, the sum of 811,771.94; fifths. of the last'.:named' sum 'Was. the property of the said tie'}i; ('lay as the heir Jat'law orsaia"Christopher; antI that the said w.,as saId. of three Items benefit not set Jorth with On such basis, the maswtthen stated the accountbetwllen Mrs. Lucy C. Freeman and Pat·tieA.JClay,representativeof C. I. Fi131d,as follows: ,. AIrs. Luoy'C. Freemlm in account with C. J. Field. Dr. Jan L To money paid her in lllOl.', ; 200 00 To inter6ston .ss.me at,6$.,25 years....... 800 00 To dower collected in 1884....... .; '............... 1,887 58 . TO:lnterellt on dower 6 years at 6" . ;, 859 58
..
9' and by.sa.·.i.d,.'. Teport l.'t. . .. by
Cr.
By balanoedue'C; L Field............................
18,7.711
Certain ,objections were' made to said report, among others that the master had failed to credit Mrs. Freeman with her part of the aaidrsu...,:of 82,396.26,. toundto b.e due on the 1st day ofJanuary, 1880, as afO,r\fs4id; and this objection was allo:wed: by the' court. Whereupon Bllid'&¥otlnt was $0 as tA>. reduce the, same by said allow,with not here, to the 8um total of court, ontha 15th day of August, 1889, WQdenld.. a final in and by which, among other things,: it was ordered andl adjudged that the complainant, Pattie A. Clayo'eoovar of Mrs. Lucy C. Freeman the said sum of 82,667.28, with interilitthereon from tM 1st day of Jllnuary, 1889, at the rate of 6 per cenJ.per annum, for whicb'executionma,y issue to be levied; and part of the costs of said cause were also adjudged against Mrs. Freeman. FnJ!p said decree of 15th of August, 1889, all oUhe parties prayed an appeal to the supreme court of the United States; but that tribunal, on the 2d day of March, 1891, (11 Sup, Ct. Rep. 419,) dismissed the appeal QfLucy C. Freema,1il on the that the amount in controversy was not sufficiently)arRe to give that court jurisdiction. . The ,bill of review brings: the entire record of the cause before the court, and prays that on'the,final hearing the court will order and adtbat the decrees herein rendered against Mrs. Freeman on the 15th day of August, 1889, be credited with the said amount of 82,387.58, with thereon at 6 per cent. per annum from the date from which the master cOIl)puted interest on the same in said aCQOunt, being the amount improperly and erroneously charged against her, since it was paid to her under said deereeof14thJune, 1884, and cannot be recovered· fnihis indirect .manner. .A demurrer was' filed to the !laid bill of teview,'$nd for causes demurret are assigned the following: ".:,. '. .. . .
FREEMAN V;:.CLAY·
7
. .. (1) There is noeq)ilty <)n the oltha !lUI. ;rhere JB not, to be any error in thefecord and proceedings had. in, tile principal case. (3) The complaiJlants; have not .performedQrtendered lJf the decree other causes to be 'assigned atthe hearing." complained of. (41. And The cQurtbelow sustain,ed demurrer, and dismissed .the said bill of review, whereupordhe complainaqts prosecute. this appeal. Edward Mayes and . Johnston, .for. appellants. William L. Nugent, for appellees. .B,ef,O:I"e .PARDEE and MCCORMICK, Circuit Judges, and LOCKE, District
JU(Ige.:.
.,' ,
'PARDEE, Circuit Judge, (after statingfhe facts.) The bill of review in this <lase is brought for alleged error of law appearing oil the face of the decree;" To sustain the b i l l - ' ,, '. "'the decree conharytosottlestatutory enartment. or spme principle 0.' rqle o( la.", or eqUity recognized 'f\cknowledged. or se,t.9!lc!sion, or with the forms or ptalitice ofthe court; but the bill cannot be mahitlllned, where the .error is in mere matter of form, or of the decree.is questioned." Danien; (lb.· Pro § 1576. ' . regard errors. of the .face of the decree. the liElhed doctrine IS that you canpi)t look mtq the the case in order to show the decree to be erroneous in its statelI,lent of the fat'ts. But taking the facts to be as they are stated to be on the face of the decree, you must show that thecoql'thaserredin point of law. "'*. '" In theCO\lrtsofthe Unlted8tatea the decre.e usually con,tains a mere reference to the antecedent proceedings without embodying them. But for the pHi'pose of exam! ning all errors of law. the bill; answers, and other proceedings are. in our practice. as much a part of the record bt'forethe (lOurt as the decree Itself; for it.is only by a compari. son with the former that. tIle correctness of tIle latter can be ascertained." Story, Eq. Pl. 407. TheSe propositions are well settled. Whiting v. Bank, 13 Pet. 6; Putnam v. Day, 22 Wall. 60; Buffington v. Harvey, 95 U. S. 99; ThompBOn
or
v. MaxweU, ld. 397; Beard v. Burts, ld. 434; Shelton v. Van Kleeck, 106 U.
S. 532,1 Sup. Ct. Rep. 491; Bridge Cb. v. Hatch, 125 U. S. 7,8 Sup. Ct. Rep. 811. In the present case the error alleged as apparent upon the face of the decree in the principal suit is the lailure of the court to give due effect to an a.lleged plea of res adjudicata contained in the answer of Mrs. Freeman to the supplemental bill. Said answer also contained a demurrer to the supplemental bill on the ground that the collection by Mrs. Freeman from the complainant of rents of her dower estate was a matter purely personal to herselfand the complainant, and could not be introdur.ed into an accounting ofthe partnership matters between C. I. Field and D. I. Field. The a.nswer of Mrs. Freeman was treated by the complainants as a plea, and was duly set down for sufficiency. About 18 months thereafter, as appears by the record, counsel, to avoid delay, agreed that the said answer was to be taken ass\lch, and considered as if excepted to; the agreement providing that if the exceptions of complainant thereto and the demurrer filed to the supplemental bill should he overruled, the case might be di$posed of finally, complainants being allowed to file excepuons to