Greenlee v. McDowell, 39 N.C. 481, 4 Ired. Eq. 481 (1847)

Aug. 1847 · Supreme Court of North Carolina

39 N.C. 481, 4 Ired. Eq. 481

EPHRAIM M. GREENLEE vs CHARLES McDOWELL.

An injunction to restrain the execution of a decree in equity cannot be granted.

But, though an injunction cannot issue, the Court of Equity may, upon a proper ease, supported by affidavits, withdraw any process it has issued, or stay an execution by granting a supersedeas.

When a record of a bill, &e. has been lost and destroyed,, the Court has full power to order a copy or the original bill to be filed.

A party to a suit is bound by the acts and agreements, made by his counsel in the management of his cause.

A bill of review, to rehear and set aside a decree, upon the ground of newly discovered testimony, cannot not be sustained, if it appears, that the testimony, though unknown to the plaintiff, was known to his attorney, solicitor or agent, in time to have been used, notice to either of them being notice to the principal. >

The eases of Reynolds v. Harshaw, 2 Ire. Eq. 196. Harris v. McRea, 4 Ire. 81, and Grice v. Rix, 3 Dev. 62, cited and approved.

Appeal from the Court of Equity of Burke County, upon an interlocutory order dissolving the injunction in this case, made at the Spring Term, 1S46, his Honor Judge Pearson, presiding-.

The plaintiff alleges in his bill, that Charles McDowell and Thomas Butler, as administrators of William C. Butler, dec’d. filed their bill in equity against him and John H. Greenlee, returnable to the Fall term, 1843, of the Court of Equity for Burke Countythat a copy and Subpoena were served upon him, returnable to the succeeding Spring Term, 1844, at which time he appeared, and employed as his solicitor, W. J. Alexander, Esquire.. Time was given him until the Fall Term ensuing to. file his answer;. before whieh time- all the papers- and most of the records" in the suit were lost or destroyed. At Fall Term 1844, when he attended to file-his answer, being informed of the loss or destruction of the record of the- suit,, it w.as- proposed to. him. to, suffer a copy of the bill to be filed in the place of the original, to which he objected and refused his assent. By the direction of Mr. Alexander he returned home, believing that nothing further could or would be done in the cause ; and heard nothing more of it, until informed by the sheriff, that he had an execution against him, in favor of Charles McDowell alone, for the sum of $318 11, upon a decree obtained at Spring-Term, 1846, of Burke Court of Equity. The plaintiff then states, that “ upon examining the records of the Court, he finds that, at Spring Term, 1845, a copy of the said bill, certified by the former clerk as a true copy, was filed by the plaintiff and the case entered on the appearance docket of that term — that, at the same time, the following entry appears on the docket, to-wit, “ Bill amended by consent of parties, by substitution of complainant, copies served and answers to be filed at the next Courtthat the following entry was likewise made, upon the copy of the bill filed as aforesaid, to-wit, “ By consent of the parties this bill amended, by striking out altogether the claims of Butler’s administrators and their names, and substituting the name of Charles McDowell for the following claims, &c.” At the succeeding Fall Term, 1S45, the bill was taken p?’o confesso against the defendant, and set for hearing at the next term : when a decree was rendered against him for $318 11 in favor of the plaintiff, Charles McDowell, and was duly enrolled — upon which decree an execution was issued. The present plaintiff then avers, that the copy of the original bill, with the indorsed amendments, was filed at the Spring Term, 1845, and the entries upon the records were made without his knowledge or consent, and that no copy of the bill, as amended, was ever served upon him. He prays, for these reasons, that the decree pro confesso may be reviewed, and he be permitted to file an answer in the original cause; and that, in the mean time, an injunction may issue to restrain the collection of the money.

The defendant answers, that two bills in equity were filed in the Court of Equity for Burke County, at the same time, against the present plaintiff, John H. Greenlee, the one on behalf of Charles McDowell and Thomas Butler, as stated in the plaintiff’s bill, and the other by Charles McDowell to recover debts due to him alone •, that copies of these bills were served on the defendant, and, at the return term, he appeared and employed Mr. Alexander to appear as his counsel. Before that time, however, the records and papers of the Court of Equity of Burke County had been stolen; and, the Butler claim being abandoned, it was agreed by the defendant and his counsel, that the copy of the Butler bill, which was furnished by the defendant, should be amended as set forth in the records and as stated and filed in this bill; and, that the defendant stated, he had, by mistake, left behind him at home the copy of the McDowell bill, which was in all respects like to the Butler bill, except as to the claims of Butler and those of McDowell. The answer further states, that it was expressly agreed between the parties, that no other copies should issue ; and that no alteration was made in the Butler bill or entries made on the records relative thereto, without the express consent of the plaintiff, who was present at the time.

Upon the coming in of the answer, the injunction previously granted, was dissolved and the bill dismissed. From this decree the plaintiff appealed.

Avery, for the plaintiff.

N. W. Woodjin, for the defendant.

Nash, J.

The bill is filed to set aside the decree, obtained by Charles McDowell against the present plaintiff, and for an injunction to stay proceedings under it.

An application to a Court of Equity to restrain its own proceedings is certainly a novelty. We are not apprized of any precedent for such a bill. The process prayed for and granted in this case is to enjoin a decree in Equity. The principle, upon which injunctions are granted to stay the proceedings of other Courts, is, that, from their organization, they cannot take effectual notice of the circumstances, which render their proceedings wrongful. But such is not the case with a Court of Equity. When it is called on to injoin its own proceedings, it is asked to pronounce, that to be iniquitous and wrong,, which it has already declared to be right and proper. And when it made this latter declaration, it was perfectly competent to declare it wrong, if it were so. Reynolds v. Harshaw, 2 Ired. Eq. 196. But, although a Court of Equity cannot with propriety be asked to injoin the use of its own process, which it has previously granted to execute its own orders or decrees, yet a party grieved or supposing-himself to be so, by its use, is not without redress. The Coux-t can, and, upon a proper case made, supported by affidavits, will withdraw the process itself, or stay an execution by granting a supex-sedeas. 2 Mad. Ch. 375.

The bill in this case is called a bill of x-eview; but it is not in reality so. It is admitted, there is in the original suit no error in law, of which the plaintiff can avail himself in this proceeding, for the bill does not even intimate an error in the decree. ■ But the object is, to set aside the interlocutory decree, taking the bill in the former suit pro confesso, and to allow the plaintiff to file an answer to it. The application is made on the ground of surprise. If, therefore, the bill and answer are considered as affidavits, upon which the motion is made, do they exhibit such a state of facts, as would justify the Court in granting the relief asked for ? We think not. The plaintiff’s allegation is, that, upon the loss of the records- of the former suit, a copy of the original bill, properly certified by the clerk, was filed without and against his consent; and that no copy has been served upon him. tie further alleges, that the amendments upon it, and the entries upon the record, were made without his knowledge or consent. That the records and papers had been lost or destroyed, is stated by the plaintiff; and, in that case, it cannot be doubted, that the Court, without or against the will of the plaintiff, had full power to order a copy of the original bill to be filed. That the copy filed was a correct one is not questioned. Harris v. McRea, 4 Ired. 81. But it is a sufficient answer to all these grounds of complaint by the plaintiff, that the records he sets forth shew that they were all done by consent of the parties, and the counter allegations of the defendant sustain them. The plaintiff’s own statements satisfy us the facts were so. Although the plaintiff avers, that the copy of the original bill was amended and filed, and the entries on the record made, without his knowledge or consent, he no where alleges that they were done without the knowledge and consent of his counsel. On the contrary, it is in substance admitted, by denying his power and authority to do so. Mr. Alexander was employed by the plaintiff, as his counsel in the case, at the return term ; and it is not alleged, that he had been discharged, at the time the transactions took place. By his acts and agreement, made in the management of the cause, the plaintiff was bound, Grice v. Rix, 3 Dev. 64; and by his knowledge also of facts. If this were a bill of review to re-hear or set aside the decree, upon the ground of newly discovered testimony, it could not be sustained, if it appeared, that the testimony, though unknown to the plaintiff, was known to his attorney, solicitor or agent, in time to have been used; notice to either of them being notice to the principal. 2 Mad. Ch. 411. Much stronger is the application of the principle to the acts of a solicitor, done within the scope of his authority in the management of the suit. The plaintiff further alleges, that no copy of the amended bill was served upon him. The record shews that it was agreed no copy should issue ; and there was a propriety in the agreement. For it is alleged by the defendant, in his answer, that the copy was furnished by the plaintiff himself, being the one which had been served on him. The answer also avers, that the plaintiff was present, when all the transactions took place, of which he now complains ; and that he assented to them all. And we are entirely satisfied that such was the fact.

Per Curiam.

Bill dismissed with costs.