Ridgely’s Notebook I, 125
Court of Chancery of Delaware, Sussex.
July 28, 1817.
Bill filed. Subpoena issued March, 1815. Defendant summoned. March, 1815, defendant appeared by Nicholas Vandyke an Thomas Cooper, his solicitors. Rule, answer in three months or attachment. Attachment issued, returnable to July, 1815. Non est inventus. Summer Term, 1815, rule, answer by next term or the bill to be taken pro confesso, and rule dedimus potestatem to James Booth, Jr., and Kensey Johns to take answer of defendant. July 21, 1815, commission issued and directed to Nicholas Vandyke, Esq. March, 1816, no answer being filed, rule that bill be taken pro confesso peremptorily, and rule that complainant be at liberty to take deposition of witness etc., and so as to defendant. Summer Term, 1816, bill taken pro confesso,
and decree made.
An affidavit was taken it seems at New Castle, sworn to and subscribed by Thomas Carlisle August 23, 1816, stating a number of circumstances with respect to his place of abode, and of matters which passed between him and his counsel, Mr. Vandyke,, and in that affidavit he the defendant prays the Chancellor “to open and set aside the decree thus rendered against him in the said suit, and that he may be admitted to answer the bill exhibited, and that the merits of this case may be examined, heard and decided by the Chancellor according to the rules and course of proceeding in the Court of Chancery, and as to right and justice appertains.”
This affidavit was made before the Chancellor August 23, 1816 at New Castle, it was filed there in the Register’s Office October 16, 1816. March, 1817, this term was held and passed, and no notice taken of the affidavit, nor motion made, it not being known to the Chancellor that the affidavit was filed. Mr. Vandyke was at Washington, a senator. Thus it slept in silence.
This day, July 28, 1817, the last day of term, Mr. Vandyke having left Georgetown in the stage to return home, Mr. Cooper, on the part of Mr. Vandyke mentioned the case to the Chancellor, whereon the affidavit was brought to light.
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THE CHANCELLOR.
This application to open and set aside the decree is rejected because the party has wantonly neglected and delayed the business. Ever since the affidavit was filed it has been egregiously neglected; and so at this very term the counsel has left it to be laid before the Chancellor at the last moment. To open the decree, let the party proceed according to the usual course of proceeding in Chancery. This application is rejected.[1]
[NOTE.] What follows is a note to this case made after the rejection of the petition.The defendant, Thomas Carlisle, Jr., was not present. No answer was filed, and none was prepared nor offered to be filed. This was not a motion, in effect, for a rehearing, but for time to plead, and to give defendant opportunity to do what he long before ought to have done. In fact it would virtually have abolished the rules and course of the court. But a rehearing, the decree being signed and enrolled, was not proper. In Mills v. Bank, 3 P.Wms. 1, 8, the Lord Chancellor said that it was in the discretion of the court to grant a rehearing; and that on a rehearing it is equally so whether they will do anything. There he would not do anything, because an infant’s money had been lent under the decree, and he said for the court to make another decree, setting aside this security, would be to make the court fight against itself. In one case Mr. Robinson, who was counsel for the complainant, stated that the complainant since the decree had sold the land.
In Mills v. Banks it does not appear whether the decree had been signed and enrolled; but in the case of Mr. Onslow, 3 P.Wms. 8, 2 Harr.Ch.Pr. 86, the rehearing was sustained on the circumstances of the case, and because the decree had not been enrolled and, of course, not signed.
In Taylor v. Sharp, 3 P.Wms. 371, it was laid down as a rule, that if a decree be obtained, and that decree enrolled, so that the cause cannot be reheard on petition, the party grieved can in no case set aside this decree or obtain relief against it by an original bill; and that the only remedy in such case is by bill of review, which must be either for error appearing on the face of the decree, or upon some new matter, as a release, receipt etc., proved to have been since discovered. In 2 Atk. 177, Standish v. Ridley,
where a decree had not been signed and enrolled, a bill in the
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nature of a bill of review is a proper one. No question arose on a rehearing, but the case clearly implies that there could be no rehearing on a decree signed and enrolled.
Amb. 89. A decree nisi made absolute was ordered after two years to be reheard on terms. In that case the whole pleadings were filed; and from the report, the decree, I apprehend, was not enrolled and signed. The order for confirmation had been made absolute; and in that way the cause stood when it was ordered to be reheard.
Bolger v. McKell, 5 Ves.Jr. 509, 511, it appears, from what the Attorney General observed upon the agreement then made, that a decree not signed and enrolled may be impeached on a rehearing. And I apprehend that a rehearing is not the proper course after the case is completely finished, that is, signed and enrolled, for then the power of the court over that case seems to cease, unless on a new suit or bill it be brought into question, or bill of review, etc.
See Gould v. Tancred, 2 Atk. 533; Norris v. Neve, 2 Atk. 27; Westly v. Birkhead, 3 Atk. 809.