Opinion
January Term, 1875.
Where a plaintiff brought an action to review and correct a decree, heretofore made in an old suit in Equity, and not yet performed: Held, upon demurrer, that the proper remedy for the plaintiff was a motion in the original suit, still pending, and not by an independent action in the nature of a bill of review.
This was a CIVIL ACTION in the nature of a Bill of Review, heard upon complaint and demurrer, before his Honor, Judge Buxton, at Spring Term, 1874, of RICHMOND Superior Court.
The present action was brought by the plaintiff, praying that a decree, made in an equity suit between the same parties, at Spring Term, 1871, might be reviewed, reversed and set aside. The original suit was commenced by bill in Equity, at Spring Term, 1868, for the purpose of closing a partnership existing between the said parties.
In his statement of the case, his Honor remarks, that "so far as the parties are concerned, the decree seems to have been performed; as the partnership funds, in contest, are in the hands of the Clerk of the Court, as receiver."
The defendants demurred to the complaint of the plaintiff, insisting:
1. That a suit between the same parties and for the same subject matter, in which a final decree had been rendered, is still pending in this Court, and that relief could have been obtained by the plaintiff, by motion, if entitled to relief.
2. That the plaintiff ought not to sustain his action, for the further reason, that the action is brought upon a judgment of this Court, duly rendered, without first giving the notice required by law.
His Honor overruled the demurrer. From this judgment, defendants appealed.
Cole, Leitch and Walker, for appellants.
Merrimon, Fuller Ashe, and Shaw, contra.
The original suit between the parties was heard at Fall Term, 1870, and there was a decree directing the Clerk to reform the account, which had been reported, in certain particulars, and when so reformed it should stand as the decree of the Court. At Spring Term, 1871, and before the decree had been performed, this action was commenced for the purpose of having the decree reviewed and corrected.
The defendants' demurred for cause, that the plaintiffs' remedy was by motion in the original cause then pending.
His Honor was of the opinion that "so far as the parties are concerned, the decree seems to have been performed, as the partnership funds in contest are in the hands of the Clerk of the Court as receiver." If from this we are to understand his Honor's opinion to be that the original suit was not pending, and that no motion could have been made therein, we thing he was mistaken. We are also of the opinion that the plaintiff's remedy is by a motion in that suit. The effect of this decision is to reverse his Honor's ruling and sustain the demurrer. But then we are also of the opinion, that upon the payment of costs by the plaintiff, if the plaintiff had moved, it would have been proper for his Honor to have treated this proceeding as a motion in the original suit.
The cause will be remanded that the parties may proceed as they may be advised. And this opinion will be certified. The plaintiff will pay the costs of this Court, as he made no motion below, to treat his action as a motion in the original suit.
PER CURIAM. Judgment accordingly.