
    HENRY FRIES vs. EVA FRIES.
    In Equity.
    No. 2734.
    I. A final decree passed at a special term of tbe court in equity cannot be opened, set aside, modified, or altered after tbe lapse of several terms of that court upon a mere petition supported by ex-parte affidavits, and upon notice to tbe adverse party.
    II. A decree is deemed to be enrolled as of tbe term at which it is passed, and a final decree cannot be opened after tbe expiration of sucb term, except upon bill of review. A proceeding by petition and ex-parte affidavit is not equivalent to a bill of review.
    III. A final decree in a divorce suit in reference to alimony is not subject to alteration or revision on ex-parte affidavits, unless it is provided in sucb decree that either party be at liberty to apply thereafter to tbe court for a modification of sucb decree in respect to alimony.
    STATEMENT OE THE CASE.
    This was a suit for divorce, and on July 25,1873, at a special term in equity, a final decree was passed divorcing the parties from the bonds of matrimony, and decreeing further, with the written consent of counsel, that Henry Fries convey to Eva Fries a certain house and lot in this city, upon said Eva Fries paying or causing to be paid to him the sum of five hundred dollars within ninety days from the date of the decree.
    On November 11,1873, two special terms having intervened, and the said money not having been paid or tendered, a simple petition was filed on behalf of Eva Fries, asking that the time for the payment of the same be extended, which was opposed on the ground that it was not competent for the court to open a final decree after the lapse of several terms of court upon a simple petition, and also on the merits upon affidavits filed.
    An order, however, was passed and signed on the 25th November, 1873, as follows:
    “ This cause coming on to be heard on the petition of the complainant for an extension of the time in which she was required to pay the defendant $500 as condition of the transfer to her of the property named in the proceedings, on consideration thereof it is this day ordered that the time of making said payment be extended for sixty days from this date, and the timé for the execution of the deed provided for in the former decree herein be also extended for sixty days from this date, and the said original decree be continued in force till the expiration of said sixty days.”
    From this order Henry Fries appealed to the general term.
    S. R. Bond and J. J. Johnson for Henry Fries, in support of the appeal, submitted:
    First. The order undertakes to open a final decree and to substitute itself as an essential part of it, and is appealable.
    Second. In the courts of this country a decree is deemed to be enrolled as of the term at which it is passed, and a final decree cannot be opened after the expiration of such term except upon a bill of review. Story’s Eq. Pl., 5th ed., §§ 403, 404; Cooper’s Eq. Pl., p. 89; Spence’s Equitable Jurisdiction, &c., vol. 1, p. 394; Smith’s Chancery, vol. 2, p. 48; Jenkins vs. Eldredge, 3 Story’s R., 199; Whiting vs. Bank of the United States, 13 Peters’ R., p. 6; Equity Rules of Court, 81 and 87.
    
      Francis Miller for Eva Fries.
   Mr. Justice Olin

delivered the opinion of the court:

The first ground of opposition to the motion to open the decree or modify it presents the simple question whether a justice holding the equity court may, after the lapse of several terms of that court, upon petition supported by ex-parte affidavits and upon notice to the adverse party, open, set aside, modify, or alter a final decree of that court. We think not. If otherwise, then one of the justices of this court who happens to hold a term for the month of November may, on petition or ex-parte affidavits, modify, alter, or reverse all the decrees passed by his predecessor at the October term. Nay, more, lie can in the same way reverse all orders and decrees passed by the justices holding the special term for the trial of causes in equity since the organization of this court. This we think is not the mode prescribed by law for reviewing orders or decrees passed by a justice holding the special term. It would be a novel practice for a justice holding the special term to be constituted a kind of appellate court, and sit to review not only his own judgments, orders, or decrees during the term at which they were made, but upon petition and exparte affidavits, review the orders, judgments, and decrees passed at some preceding term.

By the rules of the court of chancery in England, when a decree of that court was enrolled it could not be reversed, modified, or altered but by a bill of review, which in legal effect was a retrial of the suit; a bill of review at that time being almost the only remedy to correct any error made by the chancellor — no appeal being allowed at that time from his orders or decrees. But as decrees of a court in chancery are not actually enrolled in this court, a decree is deemed to be enrolled as of the term at which it is passed, and a final decree cannot be opened after the expiration of such term except upon bill of review. See Story Eq. Pl., §§ 403 and 404; Cooper’s Eq. Pl., p. 89; Whiting vs. Bank of the United States, 13 Peters, 1 and 6.

If such was the practice of the court of chancery in England, and deemed wise and salutary, and over whose orders and decrees there was no appellate supervision although the chancellor held the equity court for as many years as did Lord Eldon, how much more is the observance of some such rule imperative in a court constituted like this, in which a new chancellor may appear every month in the year save one.

It is of no moment that the modification of the original decree was made by the same justice who passed it. Some rule must be had on this subject of universal application. New will contend that a justice holding the October term of the court could upon exparte affidavits alter, modify, or reverse a decree passed by another justice at a preceding term. We must either, therefore, adopt the rule we have indicated, or adopt the rule allowing any justice who happens to hold the equity court or special term to look back through the records of the court, and upon ex-parte affidavits vacate, modify, or alter his own decrees whenever passed.

On the argument of this appeal, while it was conceded that a decree after enrollment or what is equivalent thereto,, after the lapse of the term at which it was passed, could not be opened except by bill of review, it was, however, claimed that the proceedings on the petition were equivalent to a bill of review. This is not so ; the proceedings had on this petition have no analogy to a bill of review. A bill of review is a retrial of the cause at least upon those points sought to be established in order to vacate or modify the decree. The proceedings upon this petition were wholly founded on ex-parte affidavits, a kind of testimony the law abhors, and never resorts to except in case of necessity. It was suggested on the argument that the modification of this decree was in reference to alimony, and that that matter was always under the control of a court of equity. This doubtless is so during the pendency of the suit, but after a final decree it is no longer subject to alteration or revision on petition or ex-parte affidavits any more than is the divorce itself, unless, as is often provided in the final decree, either party be at liberty thereafter to apply to the court for a modification of such decree in respect to alimony.

The order, wé think, should be reversed.  