
    DAVID N. HYDE, Appellant, v. NICHOLAS LAMBERSON ET AL., Respondents.
    Limitation — Demurrer—Bills or Review — Practice.—The statute of limitations can not be set up by demurrer, and by analogy the same rule applies to the time within which bills of review are to be filed.
    Discretion — Bills or Review. — Leave to file a bill of review which seeks to correct an error not apparent upon the decree which it seeks to reverse, is within the discretion of the court.
    Practice — Bills oe Review. — After a defendant has demurred to a bill of review, he can not raise an objection to the right of the plaintiff to file it. To avail himself of such objection, he should move the court, on his first appearance, to strike the bill from the files, or to dismiss the suit.
    Appeal from the district court of the second judicial district, Ada county.
    
      Prichett v. Hasbrouclc, for the appellant.
    
      J. Brumbaclc, for the respondents.
   Hollister, J.,

delivered the opinion.

Whitson, J., concurred. Noggle, C. J., dissented.

The original bill, on which the decree which this proceeding seeks to correct, was filed in the district court of Ada county, on the nineteenth day of October, 1869, for the foreclosure of a mortgage executed by the defendant N. Lamberson to plaintiff, conveying to tbe plaintiff tbe west half and tbe nortb-east quarter of tbe nortb-east quarter of section 4, in Ada county, excepting, etc., and sucb proceedings were tbereon bad, that on tbe twentieth day of April, 1870, a decree was rendered by tbe court against Lamberson in favor of tbe plaintiff for tbe sum of one thousand and seventy-three dollars and eleven cents, and an order entered that tbe premises be sold.

On tbe ninth of May following, tbe clerk of tbe court issued an order to tbe sheriff for tbe sale of tbe premises, which was returned by order of plaintiffs’ attorneys, without any sale, on tbe twenty-second day of the succeeding June. A mistake in tbe description of tbe premises thus conveyed and decreed to be sold, having been discovered after tbe decree bad been enrolled, the plaintiff presented bis petition to tbe court, duly verified, on tbe eleventh day of November, 1871, asking leave to file bis bill of review, for tbe purpose of having tbe decree corrected so that it might conform to tbe description of tbe premises-which tbe defendant, N. Lamberson, in and by bis said mortgage, intended to convey. Of tbe time and place for presenting tbe petition, this defendant bad due notice, and tbe court, on tbe eleventh day of November, 1871, after a full bearing of counsel on both sides, granted sucb leave. On tbe twelfth day of February following, tbe bill of review was filed. Tbe defendant, Hull, who was made a party to tbe proceeding, failing to answer, was defaulted, and on tbe sixteenth of March, tbe defendant,.N. Lamberson, put in bis demurrer, denying in general terms the equities of tbe bill, and at tbe same time filed bis answer, by which it was disclosed that since tbe decree in tbe original ease was rendered, be bad intermarried with tbe defendant, Hannah Lamberson, and that she bad an interest in the subject-matter of tbe suit.

Exceptions were taken by the plaintiff to several portions of tbe answer, which were overruled by tbe court, and on leave given, be filed bis amended bill, making the defendant, Hannah Lamberson, a party to tbe action. Tbe amended bill contained tbe averments of mistake, etc., as stated in tbe original bill.

On tbe tentli of October following, tbe defendant, N. Lamberson, entered bis motion to strike tbe amended bill from tbe files, on tbe ground that it did not any longer purport to be a bill of review, but a new and independent action, to reform tbe contract and decree. On tbe same day be and tbe defendant, Hannab Lamberson, interposed tbeir separate demurrers to tbe amended bill, and for cause, alleged tbat tbe same did not state facts sufficient to constitute a cause of action, wbicb were sustained by tbe court, and a decree rendered dismissing tbe case and for tbe recovery of tbeir costs. From tbis decree tbe cause comes bere by appeal.

Tbe bill of review as amended, distinctly alleges tbat tbe description of land actually conveyed by tbe mortgage and tbe decree for tbe sale of tbe land, were erroneous in tbis: tbat it was thus described as tbe west half and tbe northeast quarter of tbe north-east quarter of tbe section, when in truth and in fact, it was tbe intention of tbe parties tbat tbe west half and tbe north-east quarter of tbe south-east quarter of tbe section, should be conveyed. By these demurrers, it is claimed by defendant’s counsel, tbe question was raised tbat tbe time within wbicb tbe bill of review should be brought to reverse and reform tbe erroneous decree bad barred tbe right, and tbat, accordingly, tbe amended bill should be dismissed. • It is conceded tbat more than one year bad elapsed after the discovery of tbe mistake before tbe bill was filed. It is undoubtedly tbe law tbat a bill of review to reverse a decree erroneous upon its face, by analogy to tbe time for taking appeals, must be filed within one year from its enrollment, and tbe same rule applies to a bill brought for tbe same purpose where tbe decree itself shows no error, but wbicb error is afterwards discovered when tbe same period of time has elapsed after tbe error was discovered.

Before a bill for tbe latter cause can be filed, leave of tbe court must be obtained, and should leave be given and tbe bill filed, in such a case it would be an error wbicb tbe defendant might have corrected, by proper proceedings for tbe purpose, in tbe appellate court. When, however, tbe court lias given leave, it operates as a protection to tbe party filing tbe bill, and no advantage can be taken of tbe error by demurrer.

In overruling the motion for a new trial, and in deciding tbe demurrer to tbe amended bill, the counsel for defendant seemed to be of tbe opinion that because tbe petition bad not been prevented and tbe bill filed within one year, after tbe discovery of tbe error, tbe irregularity was so fatal to tbe equities of tbe plaintiff, that a demurrer would reach it on that ground. In support of this view many authorities have been cited, all of which we have carefully considered, and among them is 10 Wheat. 152. In this ease this question was fully considered, and tbe court say that a bill not filed within tbe prescribed period for error apparent on tbe face of tbe decree, should be dismissed for that reason; but as tbe bill was filed on leave of tbe court, it was tbe unanimous opinion of tbe judges, that they would give no opinion upon tbe question, but adj udged that tbe bill should be dismissed, but solely on tbe ground that it showed that tbe plaintiff was not entitled to tbe relief sought. Tbe question in 16 Yes., jun., arose upon the application for leave to file tbe bill, and for that reason leave was denied. To tbe same effect is tbe rule as stated in 2 Daniell’s Cb. Pr. and PI. 1638, 1641. We have seen in none of tbe authorities to which our attention has been called any law which goes to show that a demurrer can raise this question. On tbe contrary tbe doctrine appears to be well settled, that after a bill has been filed, whether on leave of tbe court for error not apparent upon tbe decree, or without leave, when the error is apparent after tbe proper time has elapsed, it can not be dismissed except upon a motion entered for that purpose at tbe first appearance of tbe defendants.

In Avery v. Phelps, 17 Ves. 177, tbe lord chancellor says, leave of tbe court to file the bill gives protection. Tbe supreme court of Illinois, in Griggs v. Geer, 2 Gil. 2, say: “Leave to file tbe bill rests in tbe discretion of the court; and that, after a defendant has demurred to a bill of review, be can not raise an objection to tbe right of tbe plaintiff to file it.” This we believe to be tbe true rule, and as such we feel disposed to adopt it. It is urged that it is inequitable and unjust for the plaintiff to lie by for so great a length of time, because of the rapid accumulation of the interest on the debt at the high rate contracted to be paid.

It must be confessed that we are unable to understand the force of such an argument. So far as we have looked into equity cases, it has never been held that lenity shown by a creditor to one indebted to him, by extending the time for payment of the debt, was inequitable or unconscionable'. In business circles and in law, it has always been considered as a favor to show indulgence in this manner. It was entirely within his power, and it became his legal and moral duty to pay the debt when due, and if he has failed to do so, he surely can not complain of the delay to collect it. It is objected that, instead of seeking relief in this form of action, he should have appealed from the decree complained of. The answer to this is obvious. There was nothing appearing upon the decree of the proceedings in the action which showed that any error had been committed. Only the record of the proceedings of the district court could have been brought under review in the supreme court, and no error appearing, the judgment must have been affirmed.

Upon the whole view of the case, we can come to no other conclusion from the authorities than that, by appearing and demurring to the amended bill, the defendants waived the objection that it was not filed in time, and that the judgment should be reversed and the cause remanded, and the defendants be permitted to answer to the merits of the bill.

He ver sed.  