ARGUED AND DETERMINED
UNITED STATES CIRCUIT COURTS OF APPEALS AND THE CIRCUIT AND DISTRICT COURTS.
CITY OF OMAHA v. REDICK. (Circuit Court of Appeals, Eighth Circuit. July 16, 1894.) No. 405.
SUPPLEMENTAL BILI,-WHEN ALLOWED.
A supplemental bill, in the nature of a bill of review, to obtain a modification of a decree on account of newly-discovered facts, cannot be entertained when it'llllpears that the new facts or circumstances were well known to the complainant prior to the entry of the original decree. A bill was filed by R. to vacate a deed by which he had conveyed a strip of land to the city of 0., on the ground that the deed had been executed by him under a mistake of fact. The original bill and answer disclosed that the city had improved the strip of land as a street, at great expense, before the original bill was filed. A decree was entered on the original bill which adjudged, in the alternative, that, unless the city paid into court the assessed value of the strip of land within 90' days, the deed therefor, executed by R., be canceled and annulled. At a subsequent term, the city not haVing paid the assessed value of the land, the complainant filed a supplemental bill with a view of obtaining such a modification of the decree as would compel the city to pay such assessed value. No fact or circumstance was stated in the supplemental bill, as ground for such modification of the decree, other than the fact that the complainant had no correct knowledge, at the date of the original decree, of the amount that had been expended by the city in converting the land into a street, and the further fact that he would be embarrassed by the intervention of property owners whose land abutted on the street, if he attempted to recover possession of the same. Held, (1) that the supplemental bill stated no facts entitling the court to modify its original decree; (2) that, if the sum of money expended by the city in converting the strip of land into a street had any bearing on the relief to which the complainant was en· titled, he should have obtained information as to the amount of such expenditures before submitting to the original decree; (3) that if the original bill had been framed with a view of recovering a judgment for the value of the land, such as was asked by the supplemental bill, it would have stated a cause of action at law, and could not have been maintained in equity.
Appeal from the Circuit Oourt of the United States for the District of Nebraska. v.63F.no.l-1
Suit by John I. Redick against the city of Omaha. From a decree on a supplemental bill,!, Reversed. . . ) 'i." . i' E. J. Cornish, for !. , ':, I', / William A. Redick, for appellee. Before and THAYER, District Judge.
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THAYER, District Judge. This is an appeal from a decree ena :which .was ,ftJed after ,a. d 'cree had 'been' rendered idn the original bill.. The siJig1e question presented by js in allowing the supplemental bill to be :/lIed, and in entertaming the same, and entering a decree thereon modifying the terms of the original decree. This question can"be best answered by stating the substance of the original and supplemental bills, and the substance of the respective ren,dered.. circuit court. The original bill was :filed'byJohnI. Redick,' the appellee, agaInst the city otOma:ha; 'tbeappeUarlt, <in the 27th day of January, 1890. The complainant averred 1875 he was the owner of one-half of lot No.9, and all of lot No.8, .and the east halfof lot.No, 7, tQ the cItY;Of'Qmaha;' that in the month of November, 1876"hee<;mveyed·astrip .of this land, 66 feet in width, of Omaha, so as: todivide the 'tract into two parcels, oneilf' which lay on' 'the east and 'oneth the west of the strip so conveyed; that he induced conveyance' by representatipns made to llirp..by one Gibson' that the city would convert said strip of land into a pUblic street, and that the conveyauce was made.to enable the city to construct·a street'across the three lots of land so owned by,' the complainant; that the city failed to grade and open the' ashe understood it had agreed to do,and that the complainant subsequently commenced a suit at law in the district court of Doug-las county, Neb., to recover damages for the failure of the city toco:rpply with its agreement; that the city. prevailed in said action .at h,tW, upon tIle ground that it had not· agreed to build the street in question,and that the deed executed as aforesaid by the complainant, duly acknoWledged and,recorded, had never been de,livered to or accepted by the city. Tbebill further averred that aftEll.' the termination' ()f said suit" at law! the complainant had or seven years before instituting further proceedings,tru.sting and relying upon the good faith of said city, and belieVing would eventually constnlct a street upon the stdp of land. that had .been .cop.veyed to. it by the complainant for that purpose; that thecity'didnot in fact take any steps in that direction, or open said street and render it passas such, u.nHI about theyear.1886. The billf.lirther averred that the strip of land conveyed' to the city was worth the sum of $3,000 in the year 1876, and that it was worth at least $20,000 at the time the bill was tiled. I The complaInant thereupon prayed that the court wouid decree that the conveyance to the city was' made under a misapprehension and mistake of fact, and without
,CITY OF, OMAHA
tbl,ltthedeed' been delivered to or accepted by the city of Omaha; ,and that the conveyanGe in ques· tion might be set aside and heldfor naught, as a cloud upon the complainant's title. ,The complainant further prayed that, if the court shQuld find that the. deed had in point of fact been delivered to and, accepted by the city, it might be decreed and adjudged by the court that the city either reconvey the land to the complainant, or pay him the value thereof, together with interest. The city filed an answer to said original bill, in which it admitted the execution and delivery to the city of the deed dated November 21, 1876. It averred the truth to be, however, that the said deed was executed and delivered to the city of Omaha as an inducement to it to improve the strip of land as a street for pUblic travel; that the delivery thereof was entirely uneonditional, and was not pred· icated upon any agreement by the city to open or build the street' at any particular time, or at an earlier date than its judgment might dictate: The defendant further averred that long prior to the filing of the bill of complaint the city had in fact constructed a street upon the strip of land in question, and had done so at great cost and expense to the taxpayers of the city. Testimony was taken on the issues. thus raised by the bill, answer, and replication, and a final decree was entered in'favor of the complainant on the 8th day of Jan· uary, 1892. In decree upon the original bill the circuit caurt found that the complainant was the owner of the strip .of land in question; that it was worth $2,500 on the 21st day of November, 1876; and that when the city took possession of it, and improved it for street purposes) it was reasonably worth the sum of $6,000. The court also found that the complainant was entitled to be paid the value of said land as of the day when the city took possession thereof; that he was further entitled to have the deed of November 21,1876, canceled and annulled. It thereupon "ordered, adjudged, and de· creed that unless the respondent paid irito court for the use of the complainant, within ninety days from the entry of the decree, the sum of six thousand dollars, and interest at the rate of 7 per cent. per annum,' from January 1, 1887, the deed of November 21, 1876, be canceled, annulled, and set aside." At a subsequent term, to wit, on the 25th day of November, 1892, the complain· ant tendered, and was allowed to file, a supplemental bill of com· plaint. The supplemental bill contained a statement of the various proceedings that had theretofore been taken in the case. Aitached to the supplemental complaint, as an exhibit, was a copy of the decree that had been rendered on the original complaint. The fourth and fifth paragraphs of the supplemental bill contain a statement of all of the grounds upon which the complainant predicated his right to file same. The fourth paragraph was as follows:
"Your orator further represents that said dec:ree was unskillfully drawn, and did not dispose of, adequately, the issues in said cause, or settle the equitable rights of the parties. While it is true that the decree provided, among other things, that the deed made to said city by complainant in 1876 should be set aside and held for naught in the event that the said city shOuld ,fail to pay the complaInant the condemnation value found by said court of
the property in quest!o»'l\t the time me:nt1oned In the yet It lett to your orator nothing, J>pt, the right of possession, which relief is wholly Inadequate and IncomVlete,and inequitable both to your orator and to the respondent. And your otiLtoralleges, as a' reason why said decree Is de'fectlve and Inequitable to; both parties, that after the respondent took poslIeS8lon of said prol¥lrty, In .tlJ.e latter part, of the It immediately comzpenood and ,do)'Vn sald, land. atid the Whole thereof, from six to twenty feet, and prep8X(!d to and did pave the street over the entire surface of sa1dproperty;· ' ·. ·,making a complete pavement, · '" '" and, before doing such paving, made a sewertbrough the center of said street, :thrOu,rp, the leJ;Lgth of sa1d property" '" '" '" all of which cost the frOlnsixteen to twentY thousand dollars, the greater part of which was assessed against the property abutting on sald street And your orator: alleges that while the answer in· the original sUit, discloses tbe fact that sa1dpropertyhadbeen p'aved, guttered; and otherwise improved, this respondent,MIl no CQl:rect knowledge of the nature. character, and value of sa.l4, improvements after decree had been rendered, and never knew until qUite latelY that the cost of said improvement amounted to so large a 'sUm."
The:tlfth paragraph of the supplemental bill alleged in substance that the city of Omaha had not paid the value of the land, as assessed in1he original decree, but had failed to do so, and that, if the complainant 'attempted to recover possession of 'the property by a 8uitin ejectment, he would be embarrassed msuch proceeding by the intervention of property owners whOse lots abutted upon said street. The complainant accordingly prayed that a supplemental decree might be entered, which should direct and require the city to pay into' court, for the use of complainant, the sum of $6,000, and interest at the rate of 7 per cent from January 1, 1887, and that in default of making such payment a judgment might be entered against the city for that amount. Thereafter, on the 5th day of' December",1892, the city of Omaha entered a special appearance, and :flIed a motion to strike the supplemental complaint from the files upon the ground that it was not a supplemental bill, and that the court had no jurisdiction to entertain the same at that time. This motion was overruled, whereupon, on the 31st day of January, 1893, the city demurred to the supplemental pleading upon the ground that· the pretended supplemental bill was in no sense a pleading of that character, also upon the ground that the court had no jurisdiction to entertain said bill, and also upon the ground that if appeared from said supplemental bill that the court had no jurisdiction in equity to grant the relief prayed for, because the complainant had an adequate remedy at law. The case was thereafter submitted to the court upon the supplemental bill of complaint and the demurrer thereto. On the succeeding 22d day of December, 1893, the court rendered a decree in favor of the complainant upon his supplemental bill,granting him the relief therein prayed for. By the terms of this latter decree the complainant was required, within 20 days thereafter, to deposit with the clerk of the circuit court, for the benefit of the respondent, a deed transferring to the respondent all of the complainant's interel:1t.in and to the strip of land heretofore referred to and described in the Qriginal decree. A judgment was also entered in favor of the complainant and against the city for the sum of $8,870,
CITY OF OMAHA V. REDICK.
and the costs of the suit up to the date of filing the supplemental bill. In view of the foregoing statement of the contents of the original and supplemental bills, it is difficult to discover any substantial ground upon which the last decree rendered in the case can be sustained. The supplemental bill appears to have been nothing more nor less than an application addressed to the circuit court to modify its original in a material respect, after the term had elapsed, without suggesting any additional facts' or circumstances as the basis for such judicial action. It is manifest from an inspection of the original bill and the answer thereto that when the first decree was entered, on January 8, 1892, the record disclosed every material fact pertinent to the case which is alleged in the supplemental complaint as a reason for filing the same and for invoking further action. The original bill and answer showed that the city had improved the strip of land in controversy, as a street, at great cost and expense, as early as 1885 or 1886, and that it was then being used as one of the public thoroughfares of the city of Omaha. It is not contended that the complainant was ignorant of that fact when the original bill was filed,nor that he has since become aware of any fact or circumstance, or that anything has since transpired, which, if known at the date of the entry of the first decree, would have led to any modification of its terms. The supplemental bill does indeed allege that the complainant "had no correct knowledge of the nature, character, or value of the improvements until long after the first decree had been rendered, and never knew until quite lately that the cost of said improvement amounted to so large a sum." But this is irrelevant and immaterial matter, for, beyond all question, it was the duty of the complainant to have sought information on this subject, if.the nature and cost of the improvements in question had any material bearing upon the form of the decree or kind of relief to which he considered himself to be entitled. In short, we have found it impossible to escape the conviction that the original decree was carefully and intelligently drawn, with a view of keeping within the purview of the original bill, and of affording to the complainant all of the relief that was fairly warranted by the allegations of the original complaint. The first pleading was, without doubt, a bill to obtain the cancellation of the deed of November 21, 1876, on the ground that it had been executed and placed on record by mistake, where it operated as a cloud upon the complainant's title. The complainant did not allege that the city was under a legal obligation to pay him for the strip of land in question, whether it desired to do so or not, and he did not ask for a judgment against the city unless it should elect to take the land and pay for it. His original bill was not framed with a view of recovering a judgment against the city for the value of the land upon the theory that the city had wrongfully converted the same to its own use. Oounsel who drew the original complaint doubtless understood that, if it was so framed, they would be confronted with the obvious objection thereto that the proceeding could not be maintained in a court of equity. In the light of these
icOllBidera,tf,ons; we thiblt it. obvkm. fthart there 1$, l1Qbasis tor the charge contained in the supplemental bill that "the decree was unQt the .issues in of the that the original decree :was 'drawn· iO' strict conformity. witb.theiiaUegations 'of, the original bill, and! 'that.itJgranted to the compt:atnnnt the fuUmeasure of relief wbi'Ohudes!.l'ed at that time tondbtaln. r It remains, to. be considered w:4etbeIt; upon the !!lUPplemental bU1; in the na.ture of a 1:)ilt of review to obtain a modification of a decree, can he which. discloses no facts pevtinenttQ the litigationand'oo the iSElues involved therein, except 8uchaswete well prior to the first decree. A leadibg case on thatrPoint is Pelldlet<m. v. Fay, 3 Paige, 204, where itWQS held !that bill;!:)ught to :be filed as lOon as the new matter sought tP'be insertf;d therei ll is discovereP, and that, i! ,a party proceeds to a decree after tb,e discovery of tb,e facts upon, Wihlch the new right or claim is founded" he will not be permitted: afterwards to file a supplf.\xuental bUI,in the nature of a bill· of teview, 'founded on such fact&The same .doctrine was raa:tlitmed.by: Chancellor: WalwortJ:l.'tn;r:Dias v.;¥erle, 4 Paige, 259, and was stated and applied on the circuit, by Judge Caldwell, in Henry v, tnsurance Co.,. 45 Fed. 299, 303. The rule of practice in ftpprovedby,t.he: leading text writers. Vide Story, Eq.PI. § 338a; 1 Hoff. Ch. Pl'. 398; 1 Barb. Ch. PI'. pp. 3u3, 364; Ch.P)". &1'1'. p. '1()81, note; ld.. p. 1524, note 2; and Fost. .Fed. Pl'. § lSS. .' . . Our conclusion is, that tbe question stated at the outset'of this o.pinion should be answered in the afIinnative. We are of the opinwn that the s1;lpplementaJ bill, so termed, should not have been entertained by c01;l:u4because it stated no facts or bearing .1JsP.<)u;the sought, Elx,<:ept such as were <well known, to the complaltlantat'tpe. date of tb,e entry of the original decree. We that the . supplemental pleading wholly to statefl. case entitled, the circuit court to modify its decree after had entered of record, and the ;term had lapsed. these views, the will be re'J:ersed,: and ;remlUlded to the. ciJ,'cuit· court, with directions to set 4lside the decree entered on; the lilvpplemental bill Qn the 22d day :of December, 1893, and, to dismiassaid bill at complainant's cost, but witboutprejudice to,the complainant's right to bring an action 'fl.t law to recover the value of the tract of land in controversy, if he shall so elect.
.:l!AyDEN etaJ.v. WELLINGTON et aL (Clrcu!i1Courl of Appeals, Eighth Circuit. July 16; 1894.)
Mills' Ann. ::it. Colo"if :1,69, 171. authoriZing genel'lll assignments tor the of WQ:vide that no SUch assignment by an insolvent,