.. ,I'EDERAL ,REPORTER,
voL'43.
,be, no 'fres aajudicata.''; A bill of peace requires the one. .A bill fot the statutory relief, under: the act nientioned, requires the other. In the one case, the claim of, the com plainant is that the defendant threatens to harass' and vex it, injuriously and inequitably, by bringing a suit to test the validity ofthe;complainant'stitle and possession of lands.' In the other, the plaint oLthe complainant is that the defendant will not bring such suit for such purpose. As to the first claim, the relief sought is for an enjoining orderl absolutely r!3straining the prosecution of the suit which is so vexatious. In the other, it is a mandate to compel the prompt and immediate prosecution of the suit which is ardently desired. Clearly, such claims are too contradictory and diverse to stand together. The!demurrer iSSl1stained for the cause alleged. As upon either branch of thr case, as stated in th.e bill, com plainant would have a prima facie claim to proper relief in a court of equity, it will be permitted to amend the bill, if it shall flO elect, so as to avoid the charge of multifariousness, within 15 days; the injunction heretofore granted to stand until the fur.; ther 'order of the court.
GLENN
v.
DIMMOCK
l!t at
SAME
LOCKWOOD' et
·
al.
v. LUCAS et at
(Circuit Court, E. D.Mi8souri, E. D. October 10,1890.) 1. REHEARING iN EQuITy-Tn.tE OIl GRANTING.
Equity rule 88 declll.l'es that a rehearing shall not be "granted" after the lapse of the term at which the final decree is entered, and provides that in non-appealable cases a petition for a rehearing may be "admitted" before the end of the next term after final decree. Ht:ldJ that the word" admitted, "as used therein, is synonymous with thij word "grantea," and that the eftect of the rule is to deprive the court of the power to grant a rehearing in any case after the lapse of the term next sucCeeding the of a tinal decree.
I. SUlIil-APTBB TERM SUCCE1l\DJNG DECREE-WAIVER.
An order sustaining II petition for a rehearing after thij lapse of the term next , liIucoeeding the entI'yofa· final decree is utterly void, and cannot be validated by taking leave to plead, etc.
In Equity. On motions to set aside orders overruling petitions for . rebearing.. ... Thomas K.. Skinker, for plaintiff. John W. Dryden, Noble & Orrick, Lee & Ellis, and W.H. Clopton, for defendants. THAYER,J., (oraUy.) The opinion heretofore expressed in tbese cases (the same not being appealable) that the court could not, under equity .rule 88, grant a rehearing after the lapse of the term succeeding that at which the final decrees were entered, bas been challenged in two respects. In the firetplaOEl;chiefly on the strength of a remark made in the case of Giant-PO'U{derGo.v. Cal. Vigdrit Powder Co., 5 Fed. Rep. 202, it is contended that, if a petition for'.a rehearing is filed during the term at
GLENN 11. DIMMOCX:.
551
which the final decree is rendered, the petition may be granted at any subsequent term. That particular question, however, was not before thecourtfor determination in the case referred to; hence the remark made ought not to control the disposition of a ease where the precise point is presented for decision, any further than it is found to be supported by reason or authority. The first clause of rule 88 declares that a rehearing shall not be "granted " after the lapse of the term at which the final decree is entered, and the last clause provides that in non-appealable cases a petition for a rehearing maybe "admitted "before the end ofthe next term after final decree. The first clause of the rule is not open to controversy as to its meaning, because the language is explicit that no rehearing shall be granted after the term. To my mind the meaning of the last clause is equally manifest, notwithstanding the use of the word "admitted!" in place of the word "granted." The object of the rule was to put an end to litigation,..-to fix a time after final decree beyond w.hich the prevailing party should not be kept in court; and surely there was and is as niuch reason for limiting the time within which a rehearing might be granted in non-appealable cases, as in cas'3S that were subject to appeal. It must also be borne in mind that in legal parlance the word "admitted" is frequently used as synonymous with the words "granted" and "allowed." Furthermore, the eighty-eighth rule" as a whole.,jsa modification of the old rule of procedure in the English chancery court, which did not permit a petition for be enteJ,'tained after ,the enrollment of a decree; and, according to well-known canons of construction, the defendants are entitled to invoke a strict interpretation of the rule. All of these considerations lead me to the conclusion that the word "admitted" and the word "granted," as used in the eighty-eighth rule, have the same meaning, and that the effect is to deprive the court of the power to grant a rehearing in any case after the lapse of the term next succeeding the entry of decree. The precise point under consideration does not appear to have arisen in any adjudged case, but, from expressions found in numerous decisions it is manifest that the views above stated are in harmony with the opinion generally entertained as to the meaning and effect of the eighty-eighth tole. Cameron v. McRobert8, 3 Wheat. 591; McMicken v. Perin, 18 How. 508; Scott v. Blaine, 1 Baldw. 287; Scottv. Hore, 1 Hughes, (U. S.) 163; Sheffey v.Bank, 33 Fed. Rep. 315; and see decisions. formerly cited; Roemer v. Simon, Ql U. S. 149; Brown v. Aspden, 14 How. 27. The case of Olarke v. Threlkeld, 2 Cranch, C. C. 408. is so imperfectly reported that it is not entitled to much weight as an authority. The motion in that case appears to have been acted upon by consent of parties. It is next insisted that in any event the defendants in the case of Glenn. Trustee, v. Lucas et al., havewalved their right to insist on the finality of the decree entered at the March term, 1887, in consequence of action by them taken at. thtlpresent term. Such contention is based on the following facts: Early in the present term (September, 1890) complainant's solicitor moved that the petition for a rehearing be sustained,and the .motion .was :granted. Afterwards, and on the. S/l.me day, the ,defetul.,.
552
FEDERAL REPOR1;ER I
vol. 43.
ants took leave to answer the original bill. Some days later in the term, and before an answer was filed, the court vacated the order sustaining the petitionJor a rehearing, its attention having in the mean time been directed to the mandatory character of equity rule 88. Viewing the case as one in which the dedree became final at the September term, 1887, and in which the court had lost all jurisdiction over the defendants for the pnrposeof either vacating or altering the decree, ram of the opinion that the order made at the present term, ,on complainant's motion only, sustaining the petition fora rehearing, was utterly void, and that such order was not validated, or in any nlarlller affected, by the subsequent aotion ofthe defemlants in taking leave to plead. The Case at bar stands on a different footing from that of Toland v. Sprague, 12 Pet. 300, and other like cases, in which a defendant having anclection to appear and defend in a given court, or not to appear, voluntarily entered his appearance therein, and thus waived his' privilege. In the present case the court had no control over the final decree at the time it attenlpted to vacate the same; and, even though it be conceded to complainant'that the court may vacate a decree atter it has become final by cODsent of parties made and entered of record, yet in the case at bar no act was done tantamount to giving such consent. The former orders made in these cases, overruling the petitions for rehearing filed at the March term, 1887, appear on further consideration to have been proper, and they will be permitted to stand.
CHRISMAN
et al. iJ.
HAY
et at.
(Oircuit 1.
0011,rt,
S. D. Iowa; '. ,
D. October 7,1890.)
VENDOR'S LIEN-QUITCLAIM DEED.
UndllJ; C9de Iowa, § 1940, which that no vendor's lien shall be. enforced after a conveyance by the vendee, unless such lien is reserved by writtell instrument, acknowledged and recorded, or unless such conveyance is made pending suit to foreclose the lien, a quitclaim deed by the vendee is sufficient to bar a vendor's lien not evidenced by writing. .
9.
MORTGAGE-"FoRECJ:,OSURE.
A mortgage for $25,000 on a large number of lots provided for the release of "any five Or more lots at any time hereafter" upon payment of $32 per lot. Held, that purchasers from the mortgagor, after his default in paying the mortgage debt, but before foreclosure suit was 'begun, might have their lots released for $32 each; but that the mortgagor's right to a release on those terms expired when such suit was begun·
.In Equity. Bill for foreclosure of mortgage and enforcement of vendor's lien. Submitted on pleadings and proofs. Flickinger Bro8., for complainants. Stone & Sims, Wright & Baldwin, and Sapp & Pusey, for defendants. SHIRAS, J. In the spring of 1887 the coniplainants, James S. Chrisillan and George W. Robards, were the owners of certain realty in Pot-