Benedict v. Thompson

1 Walk. Ch. 446

• Court: Michigan Court of Chancery
• Decided: July 15, 1844
• Status: Published

Opinion

The Chancellor.

Since the decision of the Supreme Court of the United States, in Bronson v. Kinzie, 1 Howard R. 311, the act under which the decree was entered, requiring mortgaged premises, as well as real estate taken on execution, to be set off by metes and bounds at two-thirds their appraised value, has been held to be unconstitutional and void as to previous contracts, and not binding upon this Court. A rehearing should, therefore, be granted, if it can be done consistently with the established rules of law.

The object of a rehearing is to save the expense and delay of an appeal, and to give the Court an opportunity of reviewing and correcting a decree made by itself, if erroneous. It can be granted only before enrolment; but the same object may be obtained after the decree has been enrolled, by a bill of review. By a rule of the English Court of Chancery, a petition for a rehearing must be presented within a fortnight after the order pronounced. 2 Madd. Ch. 482. This rule, however, does not appear to have been rigidly adhered to of late, and is important only as showing the short time allowed there for making the application. We have no rule on the subject. But a decree cannot be enrolled until the expiration of thirty days from the time it is entered in the minutes of the Court; R. S. 369; so that, in all cases, the parties have thirty days to present their petition in, and how much longer, in case the decree is not enrolled, is the question to be now decided.

Ninety days only are allowed for appealing from the decree or final order of this Court to the Supreme Court, R. S. 379, and, by the 105th rule of Court, a bill of review must be brought within the time allowed for bringing an appeal. From analogy, it would therefore seem, where the decree has not been enrolled, a rehearing should not be granted on a petition presented after the time for appealing had expired. A different rule would vest the Court with power to reverse its own decrees, after that power had ceased to exist in the appellate Court; and to open anew litigation, which the statute limiting appeals to ninety days was intended to put at rest, after that time, where no appeal had been taken.

If defendants were dissatisfied with the decree, and wished to contest the constitutionality of the law under which it was entered, they should have taken their appeal within the ninety days. They should not have lain by until the question was settled, in another case, and by another Court, and the time for appealing had expired, before presenting their petition. If the decree had been enrolled, they could not now file a bill of review; and, it not having been enrolled, a rehearing should not be granted.

Motion denied.