
    [Filed January 25, 1887.]
    JNO. B. CREWS and WM. A. SNIDER v. D. A. RICHARDS.
    Equity—Suit to Set Aside Decree.—While bills of review liave been abolished by the code, it is only the form that is abolished, the substance remains ; and a suit to set aside a decree may now be maintained upon the grounds which would formerly have been sufficient to maintain a bill of review.
    Same—"When Maintainable.—A suit to set aside a decree cannot be maintained, where it appears that the plaintiffs not only knew but could have used at the former trial the matters upon which they seek to set aside the decree, and the only ground of relief asserted is that they were misled by the allegations of the adverse party in the former suit.
    
      Umatilla County. Plaintiffs appeal.
    Affirmed, and bill dismissed.
    
      Gearin & Gilbert, for Appellants.
    
      L. Everts, for Respondent.
   Lord, C. J.

This is a suit to impeach and set aside a decree of this court. The appeal comes from a decree rendered by the court below, on demurrer to the complaint. The case is reported in 11 Or. 501. The opinion in that case shows that the two principal facts now alleged and relied upon, viz : the warrantee deed and notice, to produce a different result, were then before the court for its consideration, with this difference, that both matters are now specifically set out, as they ought to have been in the former suit. As a reason why the plaintiffs, then defendants, did not do this, they say that they were misled by the allegations as to the grounds on which said Richards was claiming the land in dispute. There is no pretense but that all tire facts and the proof of them was in possession of the plaintiffs during the trial of the former suit, and could have then been made available for the defense, if they had considered, under the allegations, that such a course had been necessary or requisite.

But admitting the facts, as stated by the plaintiffs in their complaint, have they stated a case which entitles them to relief ? Bills of review were abolished in Oregon, but a decree in equity may be impeached and set aside, suspended and avoided, by an original suit. (Code, Sec. 377.) So too is the writ of quo warranto. It is only the form that is abolished— the substance remains. A suit of this kind can only be maintained upon similar grounds to those which would be sufficient to maintain a bill of review, or a bill in the nature of a bill of review.

The first ordinance of Lord Bacon, on which the whole doctrine of bills of review rests, directs “ that no decree shall be reversed, or altered, or explained, being once under the great seal, but upon bill of review; ancl no bill of review shall be admitted, except it contain either error in law, appearing in the body of the decree, without further examination of matters of fact, or some new matter which hath arisen in time after the decree, and not any new proof, which might have been used when the decree was made.” (Story Eq. Pl., Sec. 404.) Originally the practice was that a bill of review, or a bill in the nature of a bill of review, could not be filed without previous leave of the court.

In Southard v. Russel, 16 How. 571, Nelson, J. said : “ Nor will a bill of review lie in the case of newly discovered evidence, after the publication or decree below, where a decision has taken place on appeal, unless the right is reserved in the decree of the appellate court, or permission be given on an application to the court directly for the purpose. This appears to be the practice of the Court of Chancei-y and House of Lords in England, and we think it founded in principles essential to the proper administration of the law, and to a reasonable termination of litigation between parties in chancery suits. (1 Vern. 416 ; 2 Paige, 45; 1 McCord, Ch. 22, 29, 30; 3 J. J. Marsh. 492; 1 Hen. & Munf. 13 ; Mitford Pl. 88; Cooper Pl. 92; Story’s Eq. Pl.,Sec. 408.)” To obtain such leave, it was necessary for the applicant to satisfy the court, by his affidavit or petition, that the new matter, which might probably have produced a different result, has been newly discovered by him, and could not have been produced for use when the decree was rendered. (3 Daniel’s Ch. P. 1688 ; Mit. Pl. 94.) It must disclose that the new matter is material, and would entitle the petitioner to a decree, or would present a question of such difficulty as would render probable a determination in his favor. (3 Daniel’s Ch. Pr. 1734 ; Story’s Eq. Pl. 414.) It must also show that he could not have acquired knowledge of the fact in time for effective use by the exercise of reasonable diligence. The question, Lord Eldon says, always is, not what the petitioner knew, but what, using reasonable diligence, he might have known. (Young v. Keightly, 16 Ves. 350.)

In Taylor v. Sharp, 3 P. Wms. 372, the chancellor says: “ The remedy by bill of review must be either, etc., or upon some new matter, as a release, receipt, etc., proved to have been discovered since; for unless this relief were confined to new matter, it might be made use of as a method for a vexatious person to be oppressive to the other side, and for the cause never to be at rest.”

In Carter v. Allan, 25 Gratt. 241, the court say: “ In the first place, the new matter must be relevant and material, and such as, if known, might probably have produced a different determination. In the next place, the new matter must have first come to the knowledge of the party after the time when it could have been used in the cause at the original hearing. Another qualification of the rule, quite as important and instructive, is, that the matter relied upon must not only not be known, but it must be such as the party, by the use of reasonable diligence, could not have known.”

“Nor is it sufficient,” said Story, J., “ that it—the new evidence—is such as might be argued, with more or less effect by way of presumption, against or in favor of the former testimony. But it should go further, and demonstrate that consistently with it the decree ought not to stand.” (Jenkins v. Eldridge, 8 Story, 299.)

“ And this,” said Moncure, J., “ is necessary, even in an ordinary case of a bill of review of a decree of the same court in which the bill is filed, on the ground of new matter. A fortiori it must be necessary, when the object is to reverse a decree of the court of appeals, in- favor of the finality of which there are so many reasons founded on public policy and convenience.” (Campbell v. Campbell, 22 Gratt. 649; see, also, Beard v. Burts, 95 U. S. 436 ; Brainard v. Morse, 47 Vt. 320; Rubber Co. v. Goodyear, 9 Wall. 805; Whiting v. Bank, 13 Peters, 6; Todd v. Chipman, 62 Me. 189 ; Kinsell v. Feldman, 28 Iowa, 497 ; Dexter v. Arnold, 5 Mason, 312; Brewer v. Bowman, 3 J. J. Marshall, 492; S. C. 20 Am. Dec. 158, and notes.)

Now it is perfectly clear—indeed, it is admitted—that the plaintiffs not only knew, but could have used the matter at the formal trial, which they are now urging as constituting a sufficient ground to set aside a decree of this court. There is no claim that it is new matter, or newly discovered evidence ; only that they were misled by the allegations in the former suit, and did not consider it necessary or essential to offer it. But the fact is, the court did consider the matter in respect to the deed with covenants of warranty, and the allegations in respect to notice only invite cumulative proof, and are in no sense new matter. There never could be an end to litigation, if, under such circumstances^ a party should be allowed to impeach a decree and set it aside. The policy of the law is not to protract, but to end litigation.

“ The rule is inflexible, and rests in the soundest public policy, that parol cumulative, testimony to a fact in issue in an original cause cannot be the foundation of a bill of review. To allow such testimony would invite the greatest abuse—nay, sometimes subornation of perjury—and would tend to almost endless litigation.. Interest r&publicm ut. sit finis litium.” (Stone, J., in McDougal v. Dougherty, 39 Ala. 409.)

It is true,, as claimed by the counsel for plaintiffs, that the granting of a bill of review rests in the sound discretion of the court; but the authorities show that it may be refused, although the facts, if admitted, would change the decree, where the court, looking at all the circumstances, deems it productive of mischief to innocent parties, or from any other good cause. To authorize this, a court of equity, to-exercise its jurisdiction when it is proposed by an original suit to impeach a decree, all the facts and- their averment necessary to bring the- case-within the rule must be disclosed. Otherwise the court has no power to act, or exercise its jurisdiction. In a word, it. can-only act when a proper case is brought before it for the exercise of its jurisdiction. The repose of society demands that when a litigation has ended by a final judgment it shall not be reopened, except within-the salutary principles established and illustrated by the authorities cited. And> this applies all the more strongly, and if anything, should be more strictly enforced, as-to the decree of this-court. (Knox v. Knox, 17 S. C. 210.)

The decree of the court below is affirmed, and the bill dismissed.  