Benson's Heirs v. Outten's Heirs

Court of Appeals of Kentucky

Benson's Heirs v. Outten's Heirs

28 Ky. 609, 5 J.J. Marsh. 609, 1831 Ky. LEXIS 83

DecidedApril 16, 1831

StatusPublished

This text of 28 Ky. 609 (Benson's Heirs v. Outten's Heirs) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Benson's Heirs v. Outten's Heirs, 28 Ky. 609, 5 J.J. Marsh. 609, 1831 Ky. LEXIS 83 (Ky. Ct. App. 1831).

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Opinion

Judge Buckner,

delivered the opinion of the court.

The only question presented by'thc record in this case, which it is necessary particularly to notice, is this: Does a lapse ofthree yrears from the time a decree in chancery is rendered, operate as a liar to a bill instituted to review it, on account of written evidence applicable to the matters in controversy, huí [610]*610which was not used when the decree sought to be reviewed, was rendered, because It had been lost, but I 1 , ■ 1 r 1 has since been iound.

Hills of re ^iew founded upon matter de/lowjhe re-barred by'the lapse of three yoars from the thedeoree? Cbnn and Hamm, for appellants: Wirldiffc and. Woolen, for appellees.

<\ Of bills of review there are two lands; the one is founded on matter discovered since the decree attempted to be reviewed was made, and consequently not pul. in issue in the former suit; or, on evidence of a permanent and unerring nature, applicable to points which were then in issue. In the case of Blight, &c. vs. McIlvoy, &c. IV Mon. 142, it was decided that a writ of error prosecuted to reverse a decree, and a bill of review for errors apparent on the face of the decree, are analogous and equivalent remedies; and in that of Green’s heirs vs. Breckenridge’s heirs, Ib. 541, ■ it is very strongly intimated, as the opinion of the •■court, that the remedy by bill of review is barred, whenever the hour for a writ of error has passed. But the reasons upon which that intimation is founded, are applicable exclusively to bills of review, in which the er-rorscomplainedof areapparentonthefaceof the decree. Such a bill, like a writ of error, may he prosecuted as a matter of right, without leave of the court first obtained.

But we know of no case in which it has been decided, Ilor cven ‘dimmed, that a bill of review, of the class jus‘L described, can be barred by a lapse of íhe same time that a writ of error would- be. There is no statu£0..y j;m,ration io the prosecution of a bill of review; nor v' there any such analogy between a wit of error and tee kind hn-t described, as would justify the application of the bar. In the present case the bill of review was founded on receipts or written acknowledgments by Ben-on's execumr of money, which, if e-xhi bit-ed on the former trial or the case, would have demanded a decree ditfereni from ¡hat sought to be reviewed, and in accordance wi;h that appealed from.

The genuineness of the receipts was proved, and i!; appears shat they were not used on the former trial, because they had been accidenially lost; and it would have been difilcuh, peihaps impracticable, to prove the •execution without production-of them, because there was not a subscribing witness to either of them.

The decree rnu-d be affirmed with costs.

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Judge Buckner,

delivered the opinion of the court.

The only question presented by'thc record in this case, which it is necessary particularly to notice, is this: Does a lapse ofthree yrears from the time a decree in chancery is rendered, operate as a liar to a bill instituted to review it, on account of written evidence applicable to the matters in controversy, huí [610]*610which was not used when the decree sought to be reviewed, was rendered, because It had been lost, but I 1 , ■ 1 r 1 has since been iound.

Hills of re ^iew founded upon matter de/lowjhe re-barred by'the lapse of three yoars from the thedeoree? Cbnn and Hamm, for appellants: Wirldiffc and. Woolen, for appellees.

<\ Of bills of review there are two lands; the one is founded on matter discovered since the decree attempted to be reviewed was made, and consequently not pul. in issue in the former suit; or, on evidence of a permanent and unerring nature, applicable to points which were then in issue. In the case of Blight, &c. vs. McIlvoy, &c. IV Mon. 142, it was decided that a writ of error prosecuted to reverse a decree, and a bill of review for errors apparent on the face of the decree, are analogous and equivalent remedies; and in that of Green’s heirs vs. Breckenridge’s heirs, Ib. 541, ■ it is very strongly intimated, as the opinion of the •■court, that the remedy by bill of review is barred, whenever the hour for a writ of error has passed. But the reasons upon which that intimation is founded, are applicable exclusively to bills of review, in which the er-rorscomplainedof areapparentonthefaceof the decree. Such a bill, like a writ of error, may he prosecuted as a matter of right, without leave of the court first obtained.

But we know of no case in which it has been decided, Ilor cven ‘dimmed, that a bill of review, of the class jus‘L described, can be barred by a lapse of íhe same time that a writ of error would- be. There is no statu£0..y j;m,ration io the prosecution of a bill of review; nor v' there any such analogy between a wit of error and tee kind hn-t described, as would justify the application of the bar. In the present case the bill of review was founded on receipts or written acknowledgments by Ben-on's execumr of money, which, if e-xhi bit-ed on the former trial or the case, would have demanded a decree ditfereni from ¡hat sought to be reviewed, and in accordance wi;h that appealed from.

The genuineness of the receipts was proved, and i!; appears shat they were not used on the former trial, because they had been accidenially lost; and it would have been difilcuh, peihaps impracticable, to prove the •execution without production-of them, because there was not a subscribing witness to either of them.

The decree rnu-d be affirmed with costs.

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Bluebook (online)

28 Ky. 609, 5 J.J. Marsh. 609, 1831 Ky. LEXIS 83, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bensons-heirs-v-outtens-heirs-kyctapp-1831.