Opinion · Supreme Court of North Carolina
Greenlee v. . McDowell
39 N.C. 481
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1847-08-05
- Topic
- general
Nash, J. The bill is filed to set aside the decree, obtained by Charles McDowell against the present plaintiff, and for an injunction to stay proceedings under it. An application to a Court of Equity to restrain its own proceedings is certainly a novelty. We are not apprized of any precedent for such a bill. The process prayed for *486 and granted in this case is to enjoin a decree in Equity.
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GREENLEEv. McDOWELL,39 N.C. 481(1847)
EPHRAIM M. GREENLEE v. CHARLES McDOWELL.
Supreme Court of North Carolina
(August Term, 1847.)
2. But, though an injunction can not issue, the court of equity may, upon a proper case, supported by affidavits, withdraw any process it has issued, or stay an execution by granting a supersedeas.
3. When a record of a bill, etc., has been lost and destroyed, the court has full power to order a copy of the original bill to be filed.
4. A party to a suit is bound by the acts and agreements, made by his counsel in the management of his cause.
5. A bill of review, to rehear and set aside a decree, upon the ground of newly discovered testimony, can not be sustained, if it appears, that the testimony though unknown to the plaintiff, was known to his attorney, solicitor or agent, in time to have been used, notice to either of them being notice to the principal.
The defendant answers, that two bills in equity were filed in the Court of Equity for Burke County, at the (483) same time, against the present plaintiff, John H. Greenlee, the one on behalf of Charles McDowell and Thomas Butler, as stated in the plaintiff's bill, and the other by Charles McDowell to recover debts due to him alone; that copies of these bills were served on the defendant, and, at the return term, he appeared and employed Mr. Alexander to appear as his counsel. Before that time, however, the records and papers of the Court of Equity of Burke County had been stolen; and, the Butler claim being abandoned, it was agreed by the defendant and his counsel, that the copy of the Butler bill, which wasPage 370furnished by the defendant, should be amended as set forth in the records and as stated and filed in this bill; and, that the defendant stated, he had, by mistake, left behind him at home the copy of the McDowell bill, which was in all respects like to the Butler bill, except as to the claims of Butler and those of McDowell. The answer further states, that it was expressly agreed between the parties, that no other copies should issue; and that no alteration was made in the Butler bill or entries made on the records relative thereto, without the express consent of the plaintiff, who was present at the time.
Upon the coming in of the answer, the injunction previously granted, was dissolved and the bill dismissed. From this decree the plaintiff appealed.
An application to a court of equity to restrain its own proceedings is certainly a novelty. We are not apprized of any precedent for such a bill. The process prayed for and granted in this case is to enjoin a decree in equity. The principle, (484) upon which injunctions are granted to stay the proceedings of other courts, is, that, from their organization, they can not take effectual notice of the circumstances, which rendertheirproceedings wrongful. But such is not the case with a court of equity. When it is called on to enjoin its own proceedings, it is asked to pronounce, that to be iniquitous and wrong, which it has already declared to be right and proper. And when it made this latter declaration, it was perfectly competent to declare it wrong, if it were so.Reynolds v.Harshaw,37 N.C. 196. But, although a court of equity can not with propriety be asked to enjoin the use of its own process, which it has previously granted to execute its own orders or decrees, yet a party grieved or supposing himself to be so, by its use, is not without redress. The court can, and, upon a proper case made, supported by affidavits, will withdraw the process itself, or stay an execution by granting a supersedeas. 2 Mad. Ch., 375.
The bill in this case is called a bill of review; but it is not in reality so. It is admitted, there is in the original suit no error in law, of which the plaintiff can avail himself in this proceeding, for the bill does not even intimate an error in thePage 371decree. But the object is, to set aside the interlocutory decree, taking the bill in the former suitpro confesso, and to allow the plaintiff to file an answer to it. The application is made on the ground of surprise. If, therefore, the bill and answer are considered as affidavits, upon which the motion is made, do they exhibit such a state of facts, as would justify the court in granting the relief asked for? We think not. The plaintiff's allegation is, that, upon the loss of the records of the former suit, a copy of the original bill, properly certified by the Clerk, was filed without and against his consent; and that no copy has been served upon him. He further alleges, that the amendments upon it, and the entries upon the record, were made without his knowledge or consent. That the records and papers had been lost or destroyed, is stated by the plaintiff; (485) and, in that case, it can not be doubted, that the court, without or against the will of the plaintiff, had full power to order a copy of the original bill to be filed. That the copy filed was a correct one is not questioned.Harris v. McRae,26 N.C. 81. But it is a sufficient answer to all these grounds of complaint by the plaintiff, that the records he sets forth show that they were all done by consent of the parties, and the counter allegations of the defendant sustain them. The plaintiff's own statements satisfy us the facts were so. Although the plaintiff avers, that the copy of the original bill was amended and filed, and the entries on the record made, without his knowledge or consent, he nowhere alleges that they were done without the knowledge and consent of his counsel. On the contrary, it is in substance admitted, by denying his power and authority to do so. Mr. Alexander was employed by the plaintiff, as his counsel in the case, at the return term; and it is not alleged, that he had been discharged, at the time the transactions took place. By his acts and agreement, made in the management of the cause, the plaintiff was bound,Grice v. Ricks.,14 N.C. 64; and by his knowledge also of facts. If this were a bill of review to rehear or set aside the decree, upon the ground of newly discovered testimony, it could not be sustained, if it appeared, that the testimony, though unknown to the plaintiff, was known to his attorney, solicitor or agent, in time to have been used: notice to either of them being notice to the principal. 2 Mad. Ch., 411. Much stronger is the application of the principle to the acts of a solicitor, done within the scope of his authority in the management of the suit. The plaintiff further alleges, that no copy of the amended bill was served upon him. The record shows that it was agreed no copy should issue; and there was a propriety inPage 372the agreement. For it is alleged by the defendant, in his answer, that the copy was furnished by the plaintiff himself, being the one which had been served on him. The answer also (486) avers, that the plaintiff was present, when all the transactions took place, of which he now complains; and that he assented to them all. And we are entirely satisfied that such was the fact.
PER CURIAM. BILL DISMISSED WITH COSTS.Cited: Matthews v. Joyce,85 N.C. 268;Parker v. Bledsoe,87 N.C. 223;Beck v. Bellamy,93 N.C. 134;Harrill v. R. R., 543;Hill v. Lane,149 N.C. 271.