Thomas v. Gabrielle Brockenbrough John Harvie Edwin Harvie Jacqueline Harvie Julia Ann Harvie John Harvie

APPEAL from the Circuit Court of Kentucky. The appellant, Thomas, filed in that Court, at the November term, 1818, a bill to review and reverse a final decree of the same Court, pronounced at the May term, 1810, by which the plaintiff in the bill of review, and defendant in the original suit, was decreed to convey to the heirs of John Harvie, the plaintiffs in the original suit, a certain tract of land, which formed the subject of controversy in that suit. The bill of review, after stating the substance of the original bill, which was filed by John Harvie, and the bill of revivor, after his death, in the name of the present respondents, in whose favour the decree was passed, assigns the following errors in the said decree, as causes for its reversal.

1. That the entry of James Clark, under whom the said John Harvie claimed the land in dispute, was void for uncertainty.

2. That before the final decree was passed, the said Harvie died, leaving a will, by which he devised the land in controversy to his sons, Edwin and Jacqueline, two of the plaintiffs in the bill of revivor, of which will the plaintiff was wholly ignorant until long after the final decree was entered.

3. That the said Edwin Harvie died previous to the said decree, and his right in the said land descended to his heirs at law, John and Lewis, who were no parties to the said suit, of which facts the plaintiff was wholly ignorant until long after the decree complained of.

To this bill of review, the defendants plead, in bar, the decree passed and enrolled in the original suit, and the prosecution by the plaintiff, Thomas, of a writ of error to the Supreme Court to reverse the same, which was dismissed, and then demurred to so much of the bill as sought to review and reverse the said decree. Upon argument of the plea and demurrer, the Court below dismissed the bill of review, and the cause was brought, by appeal, to this Court. Feb. 10th.

Mr. Talbot, for the appellant, argued upon the merits of the original cause, to invalidate the title of the plaintiff in that cause, founded upon the entry of Clark; and, also, upon the other errors assigned in the bill of review. He insisted, that there was no period of limitation to bills of review, by the act of Congress, and that, in this case, the bill of review being founded upon newly discovered evidence, and having been permitted by the Court below, in its discretion, to be filed, it must be determined by the error in the original decree. In England, it is usual to recite all the important facts of the cause in the decree. In this country, this is not done, and, therefore, the pleadings, exhibits, and proofs, must be resorted to, in order to discover the errors apparent upon the face of the original decree.

Mr. Bibb, contra, insisted, that the first error assigned upon the merits of the original cause, was no ground for a bill of review. The errors in law must be apparent on the face of the decree. If a fact be mistaken at the hearing, and in the decretal order, it must be rectified by a rehearing, which rehearing cannot be after decree enrolled. The other errors assigned, did not prejudice the appellant, not had he any interest in correcting them. But the conclusive objection to the whole proceeding was, that here is an attempt, by a bill of review, to revise the original decree, after the appeal is barred by the limitation of five years, prescribed in the acts of Congress. In England, writs of error are limited by statute to twenty years, and the Courts of equity have limited appeals, and bills of review, to the same period, by analogy to that statute. Feb. 18th.

Mr. Justice WASHINGTON delivered the opinion of the Court, and after stating the case, proceeded as follows: