
    WM. V. J. MERCER vs. SOPHIA L. MERCER.
    In Equity.
    No. 3383.
    I. Where a final decree in an equity suit does not conform to the decision, the proper method to have such decree corrected is by motion for a rehearing.
    II. In a suit for a divorce the court can grant a rehearing for the purpose of conforming the decree to the decision at any time before the end of the next term, under the 87th Rule in Equity of this court.
    STATEMENT OE THE CASE.
    A bill was filed by the complainant for a divorce from the bond of matrimony; an answer was interposed and proofs were taken, and after the cause was heard upon bill, answer, and proofs, the justice made the following order:
    “ This cause comes on to be heard on this the 25th day of June, 1874, on the bill, answer, replication, and proofs, and thereupon it is ordered, adjudged, and decreed that the bill be dismissed and the complainant pay the costs.”
    On the 25th day of July, during the next special term, a petition of review was filed, the material part of which is a statement that the decree actually signed and entered of .record was inadvertently signed in the words before quoted, when in fact the justice announced orally from the bench, when he decided the case, that the bill should be dimissed without prejudice.
    The further fact is asserted that the complainant had further testimony which she might have offered, but was advised that she had proven enough.
    This petition was answered by the defendant substantially putting in issue the facts above mentioned, and upon hearing this petition and answer read, the justice made the following order:
    “ This cause came on to be heard at this term, and thereupon, upon consideration thereof, it is ordered, adjudged, and decreed that the decree passed June 25,1874, in this case be, and the same is hereby, set aside, and that the petition for divorce be and the same is refused without prejudice, and that the defendant pay the costs.”
    At the rehearing Mr. Justice Wylie made the following remarks, which the court here considers an important part of the record:
    “ The recollection of the court in regard to this matter is perfectly distinct. The testimony is voluminous, and it presented on the whole such a case as ought to justify the separation by the wife from her husband. The husband was. unable to maintain his wife, much less his children ; scarcely himself; and dissensions had grown up between husband and wife. Yet the court did not find in the act of Congress authority to divorce this couple on account of the poverty of the husband and his inability to support his wife; and on that ground alone it was with great reluctance compelled to dismiss the petition. Some features looked very strongly to a contrary decision, and, without regard to the statement of petitioner’s counsel as to testimony not taken, the court was not disposed to shut the door forever against the wife in this case. Sometimes from an inadvertence all the testimony is not taken that might be, and possibly here in a new suit that testimony would change the balance, for but little more testimony is necessary to change the result.
    “ For this reason the court dismissed the bill without prejudice. The court supposed the clerk took down the substance, of the decree, and afterward when the decree was drawn up it supposed it was in accordance with the clerk’s minutes. It ascertained afterward that the decree had omitted a very material part of the decision. I am inclined to think the court would have power to correct such an error; an inadvertence of the court or of the clerk, or perhaps both. I think, for the purpose of carrying out what was intended, we ought not to construe the rule strictly against the petitioner. This is an equity rule, and to be construed for the promotion of equity. Governor Stanton says if it is to be interpreted as I have intimated, it would allow a rehearing in every case. But when you take the terms of the rule, the court finds no difficulty in seeing what goes to the Supreme Court of the United States and what not. In all cases where an ultimate appeal lies to the Supreme Court of the United States, we are prohibited from a rehearing. In divorce cases, however, no such appeal lies, and consequently they can be reheard on a motion under this 87th rule. The decree will be set aside, and a decree passed conforming to the decision.”
    From the last decree the defendant appeals to this court.
    
      R. D. Mussey for complainant.
    
      Fred. F. Stanton for defendant.
   Mr. Justice MacArthur

stated the case, and delivered the opinion of the court:

At the special term, held on the 25th day of Juue, 1874, this case was heard upon the pleadings and proofs, and a decree passed dismissing the bill at complainant’s cost. On the 25th day of July following, which was before the end of the next term of the court, the complainant filed a petition stating that when Mr. Justice Wylie, who heard the case,, announced his decision dismissing the bill the counsel for complainant informed said court that he had additional evidence which he regarded as important to his client, but that he omitted to produce it for the reason that, in his judgment, he had proved enough; that thereupon the court said the bill would be dismissed without prejudice. It is further stated in said petition that the decree which was prepared by defendant’s counsel and signed by the court, instead of conforming to such decision dismissed the bill generally with costs against plaintiff, and that such decree was signed inadvertently and does the complainant injustice, and the petition then prays the court to review and revise the same, sa as to conform it to the decision orally expressed by the said court.

Ou the 4th of August the defendant filed his answer to the bill of review. This answer alleges that the decree of the 25th of June was drawn according to what the defendant’s solicitor understood was the order of the court, and that said solicitor was informed by the justice that he had signed the decree as written, and that no intimation was given that the bill was to be dismissed without prejudice. The answer also insists that the facts stated in the petition of review do not justify any rehearing, and that the decree as recorded was just and right on the proofs in the case, and asks for the same advantage by this answer as might have been had by demurrer.

On the 6th of August the decree of the 25th of June was set aside, and it was ordered, adjudged, and decreed “thatthe petition for divorce be and the same is hereby refused, without prejudice, and that the defendant pay the costs.”

From this decree an appeal is taken by the defendant in the court below.

We desire in the first place to make an observation upon the practice adopted by the complainant’s solicitor in presenting this matter to the court below. He styles it a petition of review, and asks for a review of the decree. There is no proceeding in this form known to our practice. The relief asked for can only be obtained on a motion for a rehearing, (2 Daniel’s Ch., 1233,) and this is expressly provided for by the 87th equity rule of this court. A bill of review is a collateral suit, and lies after the first decree is enrolled, and is founded upon an averment of newly-discovered evidence, or for error in law appearing upon the face of the decree complained of. The petition here does not purport in this sense to be a bill of review, but simply seeks to have a decree corrected, so that it will conform to the decision. The proper method to accomplish this is by applying to have the case reheard. 2 Daniel’s Ch. Pr., 1232 ; Burch vs. Scott, 1 Bland, 120; Clark vs. Hall, 7 Paige, 382. But as it appears the application was presented to the special term, as it certainly was here, as if it were a motion for rehearing, we will consider it in that light, especially as it was evidently intended to be a motion of that character. These remarks are made now that the practice may not be drawn into precedent hereafter.

It appears from the statement of the case that the justice holding the special term on the 25th of June, 1874, announced his decision orally, dismissing the bill without prej udice. No minutes of the decree were taken by the clerk. Afterward the defendant’s solicitor, who understood that the bill was dismissed without any qualification, drew up a decree to that effect, which was signed by the court. The counsel for petitioner, as a reason for not preparing the decree, states that he supposed the clerk would make an entry of the opinion of the court, and that he was called out of town in the evening. It will be seen that his statement, that the'bill was dismissed without prejudice, is confirmed by the remarks of the justice tn granting the rehearing.

On the part of the defendant it is contended that the special term has no authority to make an alteration in the decree of the 25th of June, after the term at which it was signed. It is well settled in chancery practice that an application to alter or modify a decree after the adjournment of a term wilt not be entertained.

If the party is entitled to relief, he must then resort to a bill of review. In case, however, of a mere formal or clerical error, the court can correct it even though the term has expired, but with this exception all the authorities concur in the position just mentioned. The 87th Rule in Equity of this court has changed this principle in chancery practice to a limited extent; it reads as follows :

“ Every petition for a rehearing shall contain the special matter or cause on which such rehearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party or by some other person. No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the supreme court. But if no appeal lies, the petition may be admitted at any time before the end of the next term of the •court, in the discretion of the court.”

Now, as we have seen, the first decree was signed on the 25th of June, and the petition was filed before the end of the next term of the court. It follows, if this is a case in which no appeal lies to the Supreme Court, the motion for a rehearing was made within the time prescribed by our own rule. But it has been suggested that the rule refers to the supreme court of the District of Columbia. A majority of the judges, however, are of opinion that such is not the meaning of the rule. The nature of the jurisdiction of the general term shows that such cannot be the design of said rule. Tire right of appeal from, the special to the general term of this court extends without limitation to every final decree or judgment in equity. The language of the statute is that “ any party aggrieved by any order, judgment, or decree made or pronounced at any such special term, may, if the same involve the merits of the action or proceeding, appeal therefrom to the general term of said supreme court, and upon such appeal the general term shall review such order, judgment, or decree, and affirm, review, or modify the same as shall be just.” (12 Stats. at Large, p. 763, sec. 5.)

It is to be observed that appeals are mentioned in this section as lying to the general term, and this is appropriate phraseology, for it would seem incompatible with the unity of the court to talk of taking an appeal to itself. There are several cases in which the jurisdiction of this court is exclusive — suits for divorce, criminal prosecutions, and in civil suits where the amount does not exceed a certain sum — and of course in such cases no appeal lies to the Supreme Court of the United States. We think it was this class of cases that was intended to be regulated by the rule in question, and therefore conclude that the motion for a rehearing was made within the time limited for that purpose by the rule of court.

We confine our decision to this point. We declined to hear the case de novo upon the merits. The bill was dismissed without prejudice, at defendant’s costs, and he takes the appeal. It is a matter of sound discretion with the justice who hears a cause in equity who shall pay the costs, and his action in dismissing a bill without-prejudice ought not to be reviewed unless there is a plain and palpable error, which is not the case here.

Decree below affirmed.

Mr. Justice Olin

delivered the following dissenting opinion:

The last decree made in this cause, and which is appealed from, I think is erroneous, and I will state as briefly as I can the reasons which induce that belief.

1. The term at which the first decree was entered and signed by the presiding justice had closed, and the decree had become a matter of record and could not be set aside, altered, or modified at any subsequent term, except upon a bill of review.

2. The proceedings in this case subsequent to the entry of this first decree bear no resemblance to a bill of review. It was not so treated by either court or counsel, though in some of the papers it is spoken of as a bill of review. It was simply a motion made on ex-parte affidavit with notice to the opposite party, and defended by an ex-parte affidavit, and upon these ex-parte affidavits the former decree was set aside and the decree entered which is appealed from. If the proceeding is to be regarded as a motion for a rehearing of the case, the judge might grant or refuse that motion if his construction of the 87th Equity Rule be the proper one ; but instead of that he decides the whole controversy upon the exparte affidavits, revokes his former decree, and enters a new and different decree; this was wholly irregular. If a rehearing was granted the parties should have been at liberty to take evidence on both sides in support of their allegations. The evidence having been closed, the cause set for hearing in the ordinary course of practice might be disposed of when reached on the calendar as are other cases; but nothing of the kind was done, and the proceeding was throughout treated as a motion based on ex-parte affidavits, and upon reading those, apparently, the order appealed from was made.

It is attempted to justify this order under and in pursuance of the 87th Rule in Equity, but I submit, with all deference to the learned judge who tried this cause, it has no application whatever to the case. It was not intended, to my certain knowledge, to have any such construction or meaning as put upon it by the justice who tried this cause. In his opinion, printed in this case, he has injected into the rule after the words Supreme Court “ United States.” The rule says nothing of the kind, and was not intended to. Having chiefly been instrumental in preparing and drawing up the equity rules that were subsequently adopted by this court, I am well aware of what was intended by the 87th rule. The words, in the rule, “supreme court” were intended to refer to and mean the supreme court of the District of Columbia, and not the Supreme Court of the United States, and any other construction of the rule seems to me worse than nonsense, since by the rules of law and by the organic act creating this court no appeal whatever lies to the Supreme Court of the United States from any order, judgment, or decree made at a special term by one of the justices of this court. The meaning of the ruléis simple, clear, and obvious, and it is simply this, that the justice holding a special term may in his discretion entertain a motion for opening, modifying, or altering, or reviewing any decree passed at any former term, providing such decree or order was not appealable to the supreme court; that is, to this court in banc or in general term.

It will be remembered by most of my brethren upon the bench who took their seats upon the passage of the organic act creating this court, that much controversy and discussion arose whether the act created one or a half-dozen courts, or whether it created one court known as the supreme court. For this construction we all contended, and our construction of the law was finally settled by an act of Congress passed soon after the decision of the Supreme Court of the United States in the case of ex-parte Bradley. If the rule had simply said that where no appeal lies to the supreme court of the District of Columbia, or the supreme court of this District sitting in banc, the meaning of it would have been too plain and obvious to admit of dispute, and all that ren ders the rule at all obscure is thrusting into itafter the words “ supreme court” “United States”instead of Districtof Columbia. Lastly, if I am wrong in all this, the great question in the case remains whether the proceedings subsequent to the first decree be called a motion for a rehearing or a HU of review. Are there any facts stated in the papers which, according to the rules and practices of a court of equity, will permit a decree to be opened and the cause again to be proeeeded in as though no decree had been made ? For that is truly the effect of this order or last decree. It is true the justice simply modifies the first decree, but if he had a right to open it he might go on and grant a divorce just as well as make the second decree.

The rule is not to be tested by the extent of the change of the first decree, but by the principle upon which any change is made. Looking at the papers in the case, I am constrained to say there is, in my opinion, no ground whatever for the last decree. Dismissing a hill without prejudice is, in chancery, equivalent to granting a new trial in a court of law, and is governed in both cases by rules as clearly prescribed and as well defined as it is possible to do. It would indeed be a novel ground in an application for a new trial at law or a rehearing of a cause in a court of equity that the counsel or attorney did not give all the testimony on the first trial he might have given had he not supposed he had given enough. To grant a new trial on such grounds would be offering a premium to knaves or fools, which a court of equity seldom does.

The only other ground for a rehearing alleged is that a decree signed by the court was inadvertently signed. Judging from the opinion expressed, this last ground seems to have been the controlling one that resulted in the last decree. This last decree or order was actually signed by the justice. I think he, and all claiming under his decree or affected by it, are estopped from disputing its validity, unless some fraud or imposition was practiced upon him to obtain his signature to the decree, nothing of which is alleged or pretended.

To hold the contrary doctrine would require us in all cases to trust to the treacherous and uncertain memory of the judge rather than to the judicial records subscribed by his own hand.  