Bank of the United States v. White
33 U.S. 262 (1834)

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U.S. Supreme Court

Bank of the United States v. White, 33 U.S. 8 Pet. 262 262 (1834)

Bank of the United States v. White

33 U.S. (8 Pet.) 262

APPEAL FROM THE CIRCUIT COURT OF THE

UNITED STATES FOR THE DISTRICT OF OHIO

Syllabus

The twentieth of the rules made by this Court at February term, 1822, for the regulation of proceedings in the circuit courts in equity cases prescribes

"If a plea or demurrer be overruled, no other plea or demurrer shall be thereafter received, and the defendant shall proceed to answer the plaintiffs bill, and if he fail to do so within two calendar months, the same, or so much thereof as was covered by the plea or demurrer may be taken for confessed and the matter thereof be decreed accordingly."

By the terms of this rule, no service of any copy of an interlocutory decree taking the bill pro confesso is necessary before the final decree, and therefore it cannot be insisted on as a matter of right or furnish a proper ground for a bill of review. If the circuit court should, as matter of favor and discretion, enlarge the time for an answer or require the service of a copy before the final decree; that may furnish a ground why that court should not proceed to a final decree until such order was complied with. But any omission to comply with it would be a mere irregularity in its practice, and if the court should afterwards proceed to make a final decree without it, would not be error for which a bill of review lies, but it would be to be redressed, if at all, by an order to set aside the decree for irregularity while the court retained possession and power over the decree and the cause.

No practice of the circuit court inconsistent with the rules of practice established by this Court for the circuit courts can be admissible to control them.

The principle is unquestionable that all the parties to the original decree ought to join in the bill of review.

The case, as stated by MR. JUSTICE STORY, was as follows.

The Bank of the United States, in 1826, brought a bill in equity against the appellees, and Hugh Glenn, James Glenn, and Thomas Graham. The object of the bill was to set aside certain conveyances of real estate, made by the appellee, White, to the other appellees, Cummins and Bennefil, upon which estates the bank, as judgment creditors of White, the Glenns and Graham, had levied executions to satisfy those judgments. The bill charged the conveyances to be fraudulent.

The appellees appealed, and filed a demurrer to the bill, and at the July term of the court in 1828, the demurrer was overruled and the cause remanded to the rules, and a rule taken for an answer in sixty days. At the September rules, 1828,

Page 33 U. S. 263

an entry "decree pro confesso" was minuted in the rule book, and thereupon the cause was continued from term to term until July, 1830, when a final decree was entered as follows:

"It appearing to the court that the defendants in this cause are in default for answer, it is ordered, adjudged, and decreed that the matters set forth in the complainants' bill, be taken as confessed and true, and the court therefore orders and decrees that the several deeds set forth in the complainants' bill, as having been made by the said Jacob White, without any valuable consideration, and with a view to delay and hinder the complainants in the collection of their debts set forth in the bill, are void, and that the same are therefore fraudulent as to the complainants. It is therefore ordered, adjudged, and decreed that the several tracts of land in said several deeds described are liable to be sold for the satisfaction of the said several judgments held by the said complainants against said Jacob White and others mentioned and set forth in the complainants' bill. And it is further ordered that so far as said deeds may interfere with the complainants in their collection of their said judgments, the same are hereby declared void, and the said defendants are perpetually enjoined from setting up or asserting title under the said deeds, as against the complainants or any persons who may claim as purchasers at sales made on execution under any or either of the said judgments, held by the complainants, and it is further ordered that the said complainants recover of the said defendants their costs in this behalf expended."

In July, 1830, the appellees filed the present bill of review for the purpose of reversing the foregoing decree, and the charging in the bill is that the decree was irregularly and illegally made and entered as a final decree, when, according to law and the rules of the circuit court, the same ought only to have been entered as an interlocutory decree, and a copy thereof served upon the appellees before the same became final. The appellants filed an answer admitting the proceedings and decree to have been as stated in the bill of review. But the answer avers that at the time when the demurrer was overruled, the solicitor for the appellees gave the court and the solicitors for the appellants notice that the appellees, then defendants in the cause, do not wish to file any answer to the said bill. And the answer expressly denies that any error or

Page 33 U. S. 264

irregularity exists in said decree or that the same was erroneously entered or that the decree ought to have been interlocutory, and it does not admit that a copy ought to have been served upon the appellees previous to rendering a final decision thereon after they had appeared and demurred to the said bill.

The cause was set down for a hearing upon the bill of review and answer, and at the hearing, the circuit court reversed the original decree for the reasons stated in the bill of review.

The Bank of the United States appealed from this decree of reversal.

Page 33 U. S. 268

MR. JUSTICE STORY delivered the opinion of the Court.

After stating the case, he proceeded:

Several objections have been taken by the appellants to the decree. In the first place it is said that all the parties to the original decree are not made parties to the bill of review. How this matter is does not distinctly appear, as the proceedings on the original bill, though made a part of the bill of review, are not, as they ought to have been, spread upon the present record. The principle is unquestionable that all the parties to the original decree ought to join in the bill of review, but for aught that appears, no decree was ever had against the other defendants. If this constituted the turning point of the cause, we should deem it necessary to award a certiorari, as there is reason from the answer to doubt if any decree was had against the other defendants not made parties to the bill of review.

In the next place it is objected that after an appearance and demurrer overruled, it is not necessary to serve the party defendant with a copy of the decree, taking the bill pro confesso, for want of an answer. The answer to the bill of review having expressly denied any error and irregularity in the decree, and not having admitted that the service of any such

Page 33 U. S. 269

copy is necessary, that matter was directly put in controversy, and the cause having been set down for a hearing upon the bill and answer without a replication, it is difficult to perceive how this Court can take judicial notice of what the practice of the circuit court is upon this subject when that practice is the very hinge of the controversy. But it is not, in our opinion, necessary to enter upon this point, because we are of opinion that the decree is perfectly regular without the service of any copy according to the rules prescribed by this Court in equity causes to the circuit courts, and no practice of the circuit court inconsistent with those rules can be admissible to control them. The twentieth of the rules, made by this Court at February term, 1822, in equity causes, is as follows.

"If a plea or demurrer be overruled, no other plea or demurrer shall be thereafter received, and the defendant shall proceed to answer the plaintiff's bill, and if he fail to do so within two calendar months, the same, or so much thereof as was covered by the plea or demurrer, may be taken for confessed and the matter thereof be decreed accordingly."

By the terms of this bill, no service of any copy of an interlocutory decree, taking the bill pro confesso, is necessary before the final decree, and therefore it cannot be insisted on as a matter of right or furnish a proper ground for a bill of review. If the circuit court should, as matter of favor and discretion, enlarge the time for an answer, or require the service of a copy before the final decree, that may furnish a ground why that court should not proceed to a final decree until such order was complied with. But any omission to comply with it would be a mere irregularity in its practice, and if the court should afterwards proceed to make a final decree without a compliance with it, it would not be error for which a bill of review lies, but it would be to be redressed, if at all, by an order to set aside the decree for irregularity, while the court retains possession and power over the decree and the cause.

In the present case, the circuit court did proceed to make a final decree after taking the bill pro confesso. There is no error on the face of that decree. It conforms to the requisitions of the rules of this Court, and we are therefore of opinion that it is not liable to reversal upon the present bill of review.

Page 33 U. S. 270

The decree of the circuit court is

Reversed and the cause remanded to that court with directions to dismiss the bill of review.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Ohio, and was argued by counsel, on consideration whereof it is ordered, adjudged, and decreed by this Court that the decree of the said circuit court in this cause be and the same is hereby reversed, and that this cause be and the same is hereby remanded to the said circuit court with directions to dismiss the bill of review in this cause.

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