Simms v. Thompson, 16 N.C. 197, 1 Dev. Eq. 197 (1828)

June 1828 · Supreme Court of North Carolina

16 N.C. 197, 1 Dev. Eq. 197

Burwell Simms v. Nathaniel Thompson and Winifred, his wife,

From Wake.

For the recovery of legacies, filial portions, and distributive shares, the County Courts are Courts of Equity, and have all the powers of sue'n Courts. Upon proper cases, they may review or rehear their own decrees. But where a decree was made which disposed ot the cause, it was held to be equivalent to an enrolment, and that they had no power, at a subsequent term, to rehear that canse.

A review cannot be had for mistakes m a decree, which might have been rectified by proper attention.

The petition, which was filed in the County Court, at February term, 1824, set forth, that the Defendant Winifred, with several others, who were distributees of William Simms, filed their petition at November term, 1820, against the Plaintiff, as administrator of said William, for distribution of his estate; that at February term, 1821, of the said Court, tiie Clerk was ordered to take an account of the administration of the Plaintiff —that according to this order, the parties appeared before the Clerk, when the account was taken, which was in every respect satisfactory to the Plaintiff — that, after the settlement, the Clerk handed to the Plaintiff some memoranda, as guides to him, in his payment to the dis-tributees ; that the Plaintiff then supposed these memo-randa were incorporated in the account, and that the decree would be entered accordingly. But that he had learnt only within a few days, that the decree had been entered »|> for the whole distributive share of the Defendant Winifred, omitting sundry payments made her on account of it — and that she having intermarried with the other Defendant, lie had sued out a scire facias, and was pressing an execution for the whole amount of the decree. The Plaintiff prayed that the original decree might be reviewed & corrected; and also fora rehearing.

The Defendants, in their answer, denied the existence of the errors alleged in the petition, and insisted, that if they existed, the Plaintiff was without remedy, the decree in the original cause being final — as it disposed of the cause, and even of the costs.

The original decree was filed with the answer, as an exhibit. It was entered at August sessions, 1822. By it, the shares due the several distributees were settled— the costs disposed of, and an execution awarded.

At. February term, I82Í, of the County Court, the Clerk was directed to take anew the accounts between the parties. By bis report, it appeared, that the errors of which the Plaintiff complained existed, and the County Court made a decree for the Plaintiff, correcting the former decree, from which the Defendants appealed.

In the Superior Court, his honor Judge Daniel, on the Fall Circuit of 1827% dismissed the petition, being of opinion, that the County Court had full power to rehear or review a decree, upon petition on a proper case, but that there had been a final decree in this cause, and that, in substance, the petition sought for a rehearing of it. Whereupon, the Plaintiff appealed.

This Court desired Uevereux, who appeared for the .Plaintiff, to confine his observations, to the question, whether this was a proper case, cither for a rehearing or a review'. Upon which, he contended that it was. He insisted that decrees upon bills for an account never were enrolled, and the reason was, that if they were, the hands of the Court would be tied up, so that they could not correct any mistakes which might be made. Tiiat if this rule was necessary in the English Chancery, the same, or some one similar to it, should he adopted in this State, where the Courts were limited in the duration of their terms, and where business was frequently concluded in haste. He contended, that all the rules and practice of the Courts of Chancery, showed an extreme caution upon the subject of mistakes in accounts. He cited Staunton v. Oldham, (2 Jl!k. 382.) Tot hill’s Proceedings 42. Beame’s Orders 3. Cooper’s Equity Pleading 90. 1 Newland’s Practice 38. Eyler v. Ward (Die-kins 58) Foro v. Townsend (Do. 59) Wallis v. Thomas (7 Ves. 292) Pickard v. Matthews (Do. 293.)

He contended also, that this petition might be considered as a petition for a review ; and that a mistake not known to exist at the time the decree was entered, was precisely, in principle, like evidence newly discovered, which was clearly ground for a review ; and on this point was cited Patterson v. Slaughter (Jhnbler 293.)

W. H. Haywood, for the Defendant.

— The County Court cannot review or rehear decrees pronounced in that Court in cases of petition. Such power is not expressly created by the act of assembly, which confer a right in the Court to hear causes upon petition. The rules of Chancery are not made the rules of the County Court, but the manner of proceeding is pointed out by the Legislature, which differs from Chancery in important particulars. 1. A cause may be heard at the same Court which sets it down for hearing, and in some degree summarily, and without regard to form. 2. The Defendant may refuse to answer, and no process for contempt issues, but a judgment pro confesso only. 3. The decrees of the Court are to be enforced by writ ofJi.fa. or ca. sa. and not by the process of attachment. (Bevisal pages 120, 218.) There is therefore no reason to imply that the Legislature intended to establish the rules of Chancery for the guidance of the County Court.

The County Court has only a special limited jurisdiction by petition, for the recovery of legacies, filial portion and distributive shares of intestates estates, against guardians and administrators — their decrees are conclusive in the Court which pronounces them — the jurisdiction was given only to save in such cases the expense and delay of a suit in Chancery — to protect either party from injury by errors in law or fact, a right to appeal is secured by the act of assembly- — when the decree is pronounced and the Court has adjourned, the parties are no longer before that tribunal, and no process is provided by which they can supercede such decree or again bring the parties before them. (Rev. 120, 219, 812.)

The decrees of the County Court may be enjoined in Equity for the very grounds laid in this petition. (Holding v. Holding, 1 Murphey 10.)

That the Legislature intended to confer no other powers than those which by the acts are specially enumerated, is manifest from Ihe proviso in the act of 1762, that nothing therein should abridge or restrain the powers of the Court of Chancery. (Revisul 120 and 219.)

The reasons for which bills to review and petition to rehear áre allowed in Chancery, do not apply in any manner to a case like this — either party might have appealed, and the case would be tried de novo. (Rev. p. 312,219.) Upon proper grounds, the Court of Chancery would enjoin and issue a writ of certiorari. (1 Mur. 10 — . 3 Mur. 159,) and to allow the introduction of all the strict rules of Chancery in the County Court, would produce incalculable mischief to the repose and quiet of families.

This question has been settled in this Court in the case of Kemion & wife v. Branson, (Aide 64,) not in terms> but in substance.

2. But concede the power to review or to rehear, it will at least be required that the grounds of the application shall be such as would move a Court of Chancery to act. And in that Court, this decree could not be reheard, because it was final and enrolled before this petition was filed. (2 Maddox, 370 — 1 JYewland’s Chancery S60.)

It was unquestionably final, for it disposes of the whole controversy, and dismisses the parties from the Court — - either party might have taken an appeal — even the costs are adjudged to be paid.

It was enrolled, or that was done, which, in our practice, is tantamount to enrolment, before this petition was filed — to-wit: the decree was recorded, and the Court had adjourned. (Kenan’s Esc’r. v. Williamson, 1 Ilayw. Hep. — Jones v. Zoüicoffer, 1 Car. Law Hep. 376 — Ibid. Term Hep. JV‘. C. 21.)

The decree could not be reviewed — for this petition does not ask a review — and it does not disclose matter for a Bill of 'Review in Chancery, which must be for error in law apparent — or new matter discovered. (1 Rowland’s Ch. 368 — 2 Maddox Ch. 408.)

The cases cited by the Counsel do not establish the proposition for which he contends, that a “ decree upon an account is never enrolled." These cases only prove that a decree for an account, viz. an order in the cause directing that the Defendant, shall account, is never enrolled. But after the account is taken and confirmed, and decree final thereon made, the whole is enrolled, and cannot after be re-heard — And the reason why decrees to account are not enrolled, is, that the Court may reserve the right of instructions to the Master further, and, if need be, different from those originally furnished, in taking the account. This is evident from the casein Dickens, and is abundantly established by a reference to the numerous precedents of enrolled decrees pronounced Up0n accounts collected in Harrison’s and Newland’s Chancery.

In fine, we may view tins cause in every point, and it s^¡u presents itself as nothing more or less, than a petition in the nature of an original Bill in Chancery, for relief from an alleged mistake or surprize in the trial of the first suit in the County Court.

Taylor, Chief-Justice.

— The expense and delay incident to an application to Chancery, for legacies or distribution, was too obvious a mischief not to call for a remedy, more especially when there was but one Court of that description existing in the then Colony, and a great proportion of the rights sought for, were comparatively of small amount. This remedy is applied by the act of 1762, and the mode of it is, by investing the Superior and County Courts with equity jurisdiction on these subjects. To insure a speedy trial of such causes, certain rules were prescribed by the Legislature, and these must undoubtedly be observed, as far as they extend ; but where a case arises, that is not provided for by these rules, recourse must necessarily be had to the practice of a Court of Chancery.

The jurisdictions are concurrent on the subjects contemplated, but in the inferior Courts, means are adopted to accelerate the trial of causes. To construe the powers conferred on these Courts, as an exclusion of others, would be to deny the right of awarding a new trial, or of granting an appeal, neither of which are provided for by the law, though they have been constantly exercised, as well as many others appertaining to the equity jurisdiction. Nor can any reason be imagined, which justifies the propriety of refusing to rehear or review a decree in the County Court, whilst a decree made in the Superior Court is subject to this revision. It never could have been the intent of the Legislature, that an imperfect degree of justice should be administered, when the decree was rendered in the County Court, when they are cautious to secure a full measure of it in the Superior Court, by guarding against any construction which may tend to abridge the powers of the latter, in expressly providing that the powers pf the Court of Chancery shall not be limited as to such subjects. The whole spirit and object of the act require a construction which shall put those Courts fully into possession of the means of doing justice, when they are applied to ,* otherwise they will cease to answer the purposes of their establishment, for they cannot “proceed to hear and determine the same, according as the matter in equity and law shall appear to them, without regard to form,” unless they can also rehear .and review the same, upon a proper case being made.

Having no doubt as to the authority of the Court to rehear and review, it is necessary to enquire whether this forms a proper case for cither.

The only two grounds upon which a bill of review can be maintained, are, 1st, for error apparent on the face of the decree; 3d, for new matter discovered since. The subject of complaint made in this petition is, that the Clerk showed the petitioner a statement, according to which he understood the account was to be settled ; but no error appears on the face of the decree, and the ground of complaint was known to the petitioner, before the decree was entered. He alleges, that when the decree was made, ho thought the account was settled, in the manner the Clerk told him it would be, but an ordinary degree of vigilance would have saved him from this mistake.

It is clear that after the enrolment of a decree, the cause cannot be reheard, and although we have no regular enrolment in this State, according to the practice in Chancery, yet it has been uniformly considered, that after the term at which the decree was beard, if it was final, and the parties out of Court, such was equivalent to enrolment. Nor does any difference exist between decrees on accounts and others; for the cases only show, that decrees to account are not enrolled, not that the decree made after the account comes in is not enrolled.— 1'}1¡S ¡s plain from the reason given in the book ; the first decree is not enrolled because it ties up the hands of the Court from relieving, if there should have been any defect in the directions of the decree. But after the account is returned by the Master, and the parties have an opportunity of excepting, there can be no reason why the final decree should not be enrolled ; more especially as according to Lord Bacon’s second ordinance, an error in calculation, (miscasting) may be rectified without a bill of review.

Per Curiam.

— Let the decree below dismissing the petition, be affirmed.