6 Div. 81.
June 30, 1920.
Weatherly, Deedmeyer Birch, Nicholas Lalas, and Henry Upson Sims, all of Birmingham, for appellants.
The newly discovered evidence which may be made the basis for a bill of review is set out strongly in the case of Banks v. Long, 79 Ala. 319. See, also, 53 Ala. 615. But the application of the law is a different matter, and the petitioners are entitled to their bill. 113 Ala. 670, 21 So. 67. The bill filed was sufficient. 67 Ala. 560. The statement of the trial judge that he did not believe the affidavit shows an abuse of discretion. Story's Equity Pleadings, § 420, and notes.
London, Yancey Brower, of Birmingham (A. G. S. P. Smith and Garber Garber, all of Birmingham, of counsel), for appellees.
A bill for review, based upon newly discovered evidence, rests in the sound discretion of the chancellor. Sims, Chan. Prac. pars. 634 and 638; 53 Ala. 615; 51 Ala. 301; 10 Ala. 661; 79 Ala. 319; 130 Ala. 237, 29 So. 855; 1 Brickell, Dig. 667. The petition for intervention was not sufficient. 67 Ala. 563; 131 La. 1024, 60 So. 672; 69 Ala. 65; 3 Ency. Dig. 566.
Petitioners sought relief in the court below by filing a bill in the nature of a bill of review, the substance of which will sufficiently appear in the report of the case, and seek by proceedings of mandamus to review the ruling of the court in declining to permit the same to be filed.
Petitioners rely upon newly discovered evidence only in support of the bill for review, and the rules governing such procedure are well stated in the following quotations:
"The granting of a bill of review for newly discovered evidence is not a matter of right; but it rests in the sound discretion of the court. 'It may, therefore, be refused, although the facts, if admitted, would change the decree, where the court, looking to all the circumstances, shall deem it productive of mischief to innocent parties, or for any other cause inadvisable.' " Murrell v. Smith, 51 Ala. 301.
"The equity of a bill of review for newly discovered testimony is the fact that it is newly discovered, and that with the other testimony it entitles the complainant to a decree different — beneficially different — from that rendered in the cause. It must be newly discovered; for, if known before the trial, or, if with proper diligence it could have been known, this is a complete bar to such relief." Banks v. Long, 79 Ala. 319.
Pretermitting a consideration of any other matters that may appear in the cause, the one vital question presented upon this appeal is whether or not the circuit judge, sitting as chancellor, abused his discretion in the premises. We think not. The answer discloses that in the former litigation in this cause, participated in by these petitioners, concerning this proposed contract of purchase, petitioners were present in court, and represented by counsel, and the insistence was made by their attorneys that they were purchasers at a judicial sale, and arguments advanced by opposing counsel that the contract was merely an offer or proposal, subject to confirmation by the court. Petitioners had the receipt which they now offer as "the same as newly discovered evidence" in their possession, and made no explanation as to where the receipt was placed, or as to why they did not produce the same, and, so far as appears, during the progress of the cause they made no effort whatever to find it. True, the petition states that they attached little value to the receipt, for the reason the receivers assured them the contract would be carried out, but certainly they were sufficiently warned in the litigation which ensued and terminated by an appeal to this court (Harduval et al. v. Merchants' Mechanics' Trust Savs. Bk., 86 So. 52, present term), that their proposed purchase was being most vigorously resisted, and they could hardly have been better stimulated to diligence than by that proceeding. They had not only taken the receipt from the receivers, but had signed their names thereto by way of acceptance. It may be very seriously questioned, under the circumstances disclosed by this record, that the receipt comes within the meaning of newly discovered evidence sufficiently to support a bill of review. But the circumstances of the case rather impel the judicial mind to the belief that it was not so much newly discovered evidence as a newly discovered significance given to evidence which petitioners already had in their possession, and that as a matter of fact they were stimulated by the decree declining their offer to a point of effort which they should have reached, but did not, before the trial of the cause.
Ante, p. 187.
Passing, therefore, all other questions in the case, the action of the chancellor could well be rested upon a lack of diligence on the part of the petitioners, if, indeed, not an affirmative showing of negligence in respect to the matter of evidence not attempted to be offered. The petitioners fall far short of showing any abuse of discretion, but, to the contrary, we are rather inclined to the view that the chancellor correctly disposed of the matter, and the petition for writ of mandamus will be here denied.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.