tice before whom the cause was heard. The rules provide that "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." A petition filed within the time prescribed by the rules may be heard and granted subsequently. When the respondent to a petition for a rehearing, at the hearing on the petition does not dispute the fact that the suit could not be appealed, he cannot, after a rehearing has been granted, offer new proof to show that an appeal might lie, and on that ground seek to reverse a decree rendered after a rehearing.5 A rehearing in England was formerly allowed almost as of course, upon the filing of a petition signed by two counsel, of whom one at least must have been concerned in the original hearing; the rule having been stated by Lord Hardwicke, that "such credit is given by the court to their opinion that the cause ought to be reheard, that it will, in general, order the cause to be set down" for that purpose, as a matter of course. This rule, however, has not been adopted in the courts of the United States, where a rehearing is discretionary with the judge to whom the application is made. Unless the judge acts of his own motion, a rehearing will be granted only for errors of law apparent upon the record and arising upon questions which were not argued at the original hearing, or upon newly discovered evidence of such a character that it would have authorized a new trial in an action at law. A rehearing should 2 Giant P. Co. v. California V. P. Co., 5 Fed. R. 197, 202. 3 Rule 88. See McMicken v. Perrin, 18 How. 507; Bank of Lewisburg v. Sheffey, 140 U. S. 145; First Nat. Bank v. Woodrum, 86 Fed. R. 1004. 4 Aspen M. & S. Co. v. Billings, 150 U. S. 31, 36; Goddard v. Ordway, 101 U. S. 745; New Orleans v. Fisher (C. C. A.), 91 Fed. R. 574, 585; Giant P. Co. v. California V. P. Co., 6 Fed. R. 197, 202. Contra, Glenn v. Noonan, 43 Fed. R. 403; s. c., 43 Fed. R. 550. 5 Moelle v. Sherwood, 148 U. S. 21, 26. 6 Cunyngham v. Cunyngham, Amb. 89. See Atty. Gen. v. Brooke, 18 Ves. 319, 325; East India Co. v. Boddam, 13 Ves. 421. 7 Mr. Justice Field in Giant P. Co. v. California V. P. Co., 5 Fed. R. 197. 8 Daniel v. Mitchell, 1 Story, 198; Jenkins v. Eldredge, 3 Story, 299; Emerson v. Davies, 1 W. & M. 21; Tufts v. Tufts, 3 W. & M. 426; Giant P. Co. v. California V. P. Co., 5 Fed. R. 197. not be granted for newly discovered evidence where the evidence could have been obtained by reasonable diligence on the first hearing, nor when it is merely cumulative to that previously received, nor when, if presented, it would not have changed the result.10 "A new hearing should not be had simply to allow a rehash of old arguments." " "If rehearings are to be had, until the counsel on both sides are entirely satisfied, I fear, that suits would become immortal, and the decision be postponed indefinitely." 12 A rehearing can only take place for the purpose of altering a decree upon grounds which existed at the time when the decree was pronounced, and one will not be allowed to remedy a grievance consequent upon a decree resulting entirely from circumstances that have occurred subsequent to its entry.13 The rules provide that "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 some other person." The petition for a rehearing should state fully the facts which show the nature of the new evidence, the facts which show that it could not have been found by the exercise of reasonable diligence before the hearing, that it was not known then and that a diligent search was previously made for the evidence; and mere general averments of reasonable 14 9 Allis v. Stowell, 85 Fed. R. 481; McLeod v. New Albany (C. C. A.), 66 Fed. R. 378; In re Gamewell F. A. Tel. Co. (C. C. A.), 73 Fed. R. 908; Bennett v. Schooley, 77 Fed. R. 352. 10 Giant P. Co. v. California V. P. Co., 5 Fed. R. 197, 201; Jenkins v. Eldredge, 3 Story, 299; Tufts v. Tufts, 3 W. & M. 426; Hicks v. Otto, 22 Blatchf. 122; Page v. Holmes B. A. Tel. Co., 2 Fed. R. 330; Collins Co. v. Coes, 8 Fed. R. 517; Witters v. Sowles, 31 Fed. R. 5; Pfanschmidt v. Kelly M. Co., 32 Fed. R. 667, and cases cited in the opinions in these cases. But see Webster Loom Co. v. Higgins, 43 Fed. R. 673. It has been said that a motion to open a decree in order to introduce new evidence differs from a motion for a rehearing, technically so called, and is not to be governed by the same stringent rules. “It is rather a motion addressed to the discretion of the court with reference to the order of trial." Campbell Pr. & Mfg. Co. v. Marden, 70 Fed. R. 339, 340. 11 Field, J., in Giant P. Co. v. California V. P. Co., 5 Fed. R. 197, 201. 12 Story, J., in Jenkins v. Eldredge, 3 Story, 299, 305. 13 Bowyer v. Bright, 13 Price, 316; Hurlburd v. Freelove, 3 Wis. 537. 14 Equity Rule 88; U. S. v. The Dago (C. C. A.), 63 Fed. R. 182. The return and affidavits should not be verified before a notary who is one of the petitioner's counsel. Allis v. Stowell, 85 Fed. R. 481. 18 diligence and previous ignorance are insufficient.15 The allegations must be full, precise, and certain. It seems that they will be insufficient if sworn to merely upon information and belief.16 It has been held that when evidence of new facts not already in issue is to be given, the petition should be accompanied by a supplemental bill in the nature of a bill of review, pleading these facts; in which case, if the petition be granted, the hearing upon that bill will take place at the same time as the rehearing of the original suit." The usual proceedings to obtain a rehearing are for the party desiring it to file his petition in the clerk's office, and then to procure an order directing his opponent to show cause why his prayer should not be granted. The adverse party may then answer, controverting or setting up new matter in avoidance of allegations in the petition; or probably may show cause against granting the rehearing on the return-day of the order by an affidavit.19 If there be any irregularity in the petition, it may be taken off the file at the respondent's motion.20 Upon the return-day of the order to show cause, if no adjournment be had, the matter is argued before the judge, by whose direction the decree or order complained of was made, unless he be absent, when the papers and the briefs of counsel should be filed with the clerk, who will mail them to him." The petition will not be granted without notice to the adverse parties, and an opportunity for their presence afforded them.22 A rule of the Circuit Court for the Southern District of New York provides that when a "motion for a rehearing is made during the term at which a decree has been rendered, the enrolling or recording of such decree shall be suspended until the final disposition of such motion by the court." 23 Upon a rehearing the cause or matter is proceeded in as if it were heard for the first time. All dep 15 Allis v. Stowell, 85 Fed. R. 481; Hicks v. Otto, 85 Fed. R. 728; McLeod v. New Albany (C. C. A.), 66 Fed. R. 378. 16 Page v. Holmes B. A. Tel. Co., 2 Fed. R. 330. 17 Baker v. Whiting, 1 Story, 218; Perry v. Phelips, 17 Ves. 173, 178; Head v. Godlee, Johns. 536, 579; Jopp v. Wood, 2 De G., J. & S. 323. 18 Giant P. Co. v. California V. P. Co., 5 Fed. R. 197. 19 Ibid. 20 Wood v. Griffith, 1 Meriv. 35. 21 Giant P. Co. v. California V. P. Co.. 5 Fed. R. 195. 22 Ibid., 197. 23 U. S. C. C., S. D. N. Y., Rule 114. 28 ositions taken before the original hearing, though not then used, may be read," and the plaintiff may withdraw from evidence any portion of the answer read before.25 No new evidence can be used, unless a supplemental bill has been filed; ∞ but exhibits not previously used may be produced; 27 and if a witness has since the former hearing been convicted of perjury, or admitted receiving a bribe to influence his testimony," that may be proved to the court. After one rehearing, a petition for another can only be filed by special leave of the court, and may be taken off the file if presented without such leave.30 It has been held that an order granting a rehearing after the time prescribed by the rules has expired is void, not merely voidable; and that a party does not, by taking a subsequent step in the cause, waive his right to move to vacate the same." The grant or refusal, absolute or conditional, of an application for a rehearing, which has been made in due time, rests in the discretion of the court where the cause is first heard, and is not a subject of appeal. Affidavits presented in support of a motion for a rehearing which was denied, cannot be considered on an appeal from the final decree.33 § 353. Supplemental bills in the nature of bills of review.- A supplemental bill in the nature of a bill of review is a bill that brings to the attention of the court new matter, which has arisen or been discovered since, and could not by the exercise of due diligence have been discovered before, the time for taking testimony in a cause expired, and which the party filing the bill alleges as a reason why a decree made and passed therein, but not signed and enrolled, should be reversed or modified. 24 Cunyngham Amb. 89, 90. Such a bill cannot be filed after a decree has V. Cunyngham, 103, 106; Buffington v. Harvey, 95 U. S. 99, 100; Steines v. Franklin County, 14 Wall. 15, 22; Railway Co. v. Heck, 102 U. S. 120; Kennon v. Gilmer, 131 U. S. 22, 24; Boesch v. Gräff, 25 Allfrey v. Allfrey, 1 Macn. & G. 87; Ogle v. Morgan, 1 De G., M. & G. 359. 26 Jenkins v. Eldredge, 3 Story, 299; 133 U. S. 697, 699. infra, § 153. 27 Herring v. Clobery, Cr. & Ph. 251. 30 Moss v. Baldock, 1 Phila. 118. 33 Giles v. Heysinger, 150 U. S. 627, 631. $353. Perry v. Phelips, 17 Ves. 173; Mitford's Pl., ch. 1, § 2; Moore v. Moore, 2 Ves. Sen. 596; Story's Eq. Pl., SS 422, 423. been signed and enrolled. The proper remedy in a similar case then is a bill of review. A supplemental bill in the nature of a bill of review cannot be used to obtain a reversal or modification of a decree for errors in law apparent upon its face. That, before enrolment, can only be done by means of a petition for a rehearing. Matter of revivor and supplement may be incorporated in such a supplemental bill. An English chancery order made on the 17th of October, 1841, and which should probably be followed here, the clerk taking the place of the registrar and five dollars being reckoned as a pound sterling, provides: "That no supplemental bill, or bill in the nature of a bill of review, grounded upon new matter discovered, or pretended to be discovered, since the pronouncing of any decree, of this court, in order to the reversing or varying of such decree shall be exhibited without the special leave of the court first obtained for that purpose, and unless the party exhibiting the same do first deposit with the registrar of this court so much money as together with the deposit by the rules of this court required to be made on obtaining a rehearing of the cause or causes wherein such decree was pronounced will make up the sum of 50%., as a pledge to answer such costs and damages as shall be awarded to the adverse party, in case the court shall think fit to award any at the hearing of the cause on such supplemental or new bill." A supplemental bill in the nature of a bill of review should state the facts which it is desired to prove, and, if they had then occurred, the reason why they were not discovered and given in evidence before publication, and it seems should state positively that the decree has not been enrolled, and not in the alternative, praying one sort of relief as upon a bill of review, if the decree has been enrolled, and if not enrolled, then to have the benefit of it as upon a supplemental bill in the nature of a bill of review.8 Such a bill should conclude with a prayer that the cause may be reheard. It should be signed by counsel, and in other respects conform to the requirements of a bill of review upon 2 Beames' Orders, 1. 3 See § 354-356. 4 Perry v. Phelips, 17 Ves. 173. 5 See § 352. 1 Order of 17th October, 1741; Beames' Orders, 368. See the 8 Story's Eq. Pl., § 425. language of Lord Eldon in Perry v. 6 Perry v. Phelips, 17 Ves. 176-178. Phelips, 17 Ves. 173–178. |