SOUTHARD V. RUSSELL, 57 U. S. 547 (1853)

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U.S. Supreme Court

Southard v. Russell, 57 U.S. 16 How. 547 547 (1853)

Southard v. Russell

57 U.S. (16 How.) 547


A bill of review, in a chancery case, cannot be maintained where the newly discovered evidence, upon which the bill purports to be founded, goes to impeach the character of witnesses examined in the original suit.

Nor can it be maintained where the newly discovered evidence is merely cumulative, and relates to a collateral fact in the issue, not of itself, if admitted, by any means decisive or controlling: such as the question of adequacy of price, when the main question was, whether a deed was a deed of sale or a mortgage.

Where a case is decided by an appellate court, and a mandate is sent down to the court below to carry out the decree, a bill of review will not lie in the court below to correct errors of law alleged on the face of the decree. Resort must be had to the appellate court.

Nor will a bill of review lie founded on newly discovered evidence, after the publication or decree below, where a decision has taken place on an appeal, unless the right is reserved in the decree of the appellate court, or permission be given on an application to that court directly for the purpose.

Being a continuation of the case of Russell v. Southard and others, reported in 53 U. S. 12 How. 139, it is proper to take it up from the point where that report left it.

In 53 U. S. 12 How. 159 it is said,

"After the opinion of the court was pronounced, a motion was made on behalf of the appellees for a rehearing and to remand the cause to the circuit court for further preparation and proof, upon the ground that new and material evidence had been discovered since the case was heard and decided in that court. Sundry affidavits were filed, showing the nature of the evidence which was said to have been discovered."

The reporter abstained from stating the substance of these affidavits in consequence of the following order, which was endorsed upon them in the handwriting of MR. CHIEF JUSTICE TANEY.

"The Court directs me to say that these affidavits are not to be inserted in the report, as they implicate the character of individuals

Page 57 U. S. 548

who can have no opportunity of offering testimony in their defense. The reporter will merely state, in general terms, that affidavits were filed to support the motion."

As the present case turned chiefly upon the contents of these affidavits which were made the groundwork for the bill of review, it becomes necessary to state them now. They were affidavits to sustain the two following points:

1. That Dr. Wood, a witness for Russell was bribed either by him or his attorney, Stewart; that Wood had in his possession a note given to him by Stewart for about three hundred dollars, then past due; that Wood had applied to a person named Addison to collect it for him, and left the note in his possession for that purpose; and that Wood had confessed to James J. Dozier, Esq., that the note had been given to him for his testimony in the case.

2. The following affidavit of George Hancock.

"I, George Hancock, state that some short time previous to the sale by Col. Gilbert C. Russell of his farm near Louisville, to James Southard, he offered to sell it to me for five thousand dollars, and he made the same offer to my sister, Mrs. Preston. I thought it a speculation, and would have bought it but for the reputation the place bore for being extremely sickly. He also explained to me the reason why he had given so large a price for the place, which it is not deemed necessary here to state, and which satisfied me that he knew he was giving much more than its value, at the time he made the purchase."


Upon these affidavits, the motion for a rehearing was made and overruled, the opinion of the Court overruling the motion being recorded in 53 U. S. 12 How. 158.

The mandate went down to the circuit court, and was there filed at May term, 1852. The circuit court decreed that the conveyance from Russell to Southard was a mortgage, and that Russell was entitled to redeem; and in further pursuance of the opinion of the Supreme Court that the case was not then in a condition for a final decree in respect to the other defendants, it was remanded to the rules.

At the same term, namely in June, 1852, Southard and the other appellants moved the court for leave to file a bill of review of the decree rendered at the present term, and in support of the motion presented their bill, and read the following documents, namely:

The affidavits of James Guthrie, Willett Clarke, Daniel S. Rapelge, U. E. Ewing, Thomas G. Addison, George Hancock, Charles M. Truston, John P. Oldham, J. C. Johnston, D. F. Clark, and of R. F. Baird, and a paper purporting to be an extract

Page 57 U. S. 549

from a letter from Russell to J. W. Wing, and a copy of the deed from G. C. Russell to Joseph B. Stewart. And the said Russell by his counsel, opposed the motion, and objected that the grounds made out were insufficient, and read in his behalf the documents which follow: the affidavits of Elias R. Deering, Elijah C. Clark, Robert F. Baird, J. B. Stewart, Philip Richardson and of Robert F. Baird, a copy of the record of Burks against Southard, and a copy of the opinion of the Supreme Court of the United States upon a new hearing, with the affidavits attached thereto.

After argument, the court gave leave to the complainants to file their bill of review; whereupon the defendant, Russell moved the court to strike from the bill all that portion relating to champerty and all that portion relating to the explanation of the evidence of J. C. Johnston, by the introduction of his affidavits, and all other parts of said bill which is designed to explain the evidence already in the original record. The court overruled the motion, but reserved all the questions of the competency and effect of the matters the defendant moved to have stricken from the bill, to be decided when they may be made in the progress of the cause, or on the final hearing thereof.

In September, 1852, Russell filed his answer.

The substance of the bill and answer are stated in the opinion of the court.

In May, 1853, the circuit court dismissed the bill with costs, upon the ground that

"there is not sufficient cause for setting aside said decree of the Supreme Court of the United States, entered here, according to the mandate of said Supreme Court."

From this decree, the complainants appealed to this Court.

Page 57 U. S. 566

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