Opinion
No. 29402.
October 19, 1931.
1. EQUITY.
Mistake, as ground for bill of review to correct or set aside decree, must be mutual and unmixed with negligence.
2. EQUITY. Complainants held not entitled to have decree of dismissal set aside because of mistake, where counsel read decree before entry and acquiesced therein.
Demurrers to the original bill were sustained and a decree was entered allowing complainants to amend, and providing that, in event no amendment was filed within thirty days, then bill should stand as dismissed with prejudice. No amendment was filed within thirty days, but thereafter two amended bills were filed and subsequently stricken from the files. The evidence showed that chancellor did not sign decree under any mistake as to its contents, and that decree, before entry, was handed to counsel for complainants, and that he retained decree for sufficient length of time to have read it.
APPEAL from chancery court of Monroe county; HON. J.A. FINLEY, Chancellor.
S.H. Long C.P. S.H. Long, all of Tupelo, for appellants.
Equity has jurisdiction other than bill of review to correct decrees which deprive parties of having their cases tried on their merits by misunderstanding, fraud, mistake or otherwise.
Harper v. Barnett, 16 So. 533; Wilson v. Handsboro, 54 So. 845; Cotton v. McGehee, 54 Miss. 21; Brown v. Wesson, 114 Miss. 216; Weems v. Powell, 122 Miss. 352.
Justice was not done in dismissing a meritorious bill, where counsel for appellant relied on the other party to write the usual decree in such matters, and did not read it though given an opportunity, still relying on the opposing counsel to write the decree as the court had directed, or as was naturally to be assumed would follow in such case.
Germaine v. Harwell, 108 Miss. 396.
A decree may be set aside and the correct decree written where the court knew exactly what the decree was that it was signing, and both parties looked it over carefully, saw its contents, and the court signed it with their full knowledge and consent, but it developed later that a mistake had been made by the agents of the appellant and through their fault and negligence entirely.
Robinson v. Aetna Life Insurance Company, 134 Miss. 406. Paine Paine, of Aberdeen, for appellees.
The burden of proof to show fraud in a decree or the procurement of the decree is upon the party attacking the decree and must be proved by the most clear and convincing proof.
Adams v. Belt, 136 Miss. 511.
Where a "mistake" is relied on, it must be proved that the mistake occurred and in addition thereto that it was a mutual mistake and further that the mistake must not have been the result of negligence on the party complaining or must not be a mistake which would not have occurred had the party complaining exercised due care and diligence.
Corinth State Bank v. Nixon, 144 Miss. 674.
A party who has an opportunity seasonably to object and does not then do so, shall not be allowed to object later. . . . That equity does not take care of a party as to those matters respecting which he could have taken care of himself by ordinary diligence at the proper time and at the proper place, are principles that have expressions in a hundred ways throughout all equity proceeding.
Griffith's Chancery Practice, p. 712, sec. 624.
Although a mistake made without want of due diligence may be a sufficient ground for review, a review will not be allowed where the petitioner had knowledge of or access to facts which would have cured the mistake, or where he could have avoided its consequences by ordinary diligence.
54 C.J., p. 754; Thomas v. Phillips, 4 S. M. 358; Webster v. Skipworth, 26 Miss. 349; Brown v. Wesson, 114 Miss. 216.
The appellants I.H. and Byers McCollum, instituted a suit in the nature of an attachment in chancery against M.C. Dillard and Johnnie Dillard as partners, seeking to recover the purchase price of certain personal property alleged to have been sold to M.C. Dillard. Upon the sustaining of demurrers to this original bill, a decree was entered allowing the complainants thirty days to amend their bill, and providing that, "in the event no amendment is filed within thirty days, then the bill shall stand as dismissed with prejudice." No amendment or amended bill was filed within the thirty days allowed for that purpose, but thereafter two amended bills were filed, both of which, upon motion, were stricken from the files; and thereupon an appeal was prosecuted to this court. In an opinion reported in 152 Miss. 260, 119 So. 180, it was held that, upon the failure of the complainants to amend the bill of complaint within thirty days, the decree originally entered in the court below became final, and that the amended bills thereafter filed were properly stricken.
Thereafter the appellants filed a bill in the nature of a bill of review, which, as finally amended, set forth the averments of the original bill and the proceedings thereon, and averred, in substance, that the aforesaid decree providing for a dismissal with prejudice, upon the failure of the appellants to amend their bill within thirty days, was signed and entered through a mistake of the court and appellants counsel as to the provisions and contents thereof, and that said decree "did not express the opinion of the court, nor did it decree what the court directed should be contained in same, and said decree is entirely a mistake on the part of all the parties."
Upon the hearing of this bill of complaint, Chancellor Allen Cox, who granted the original decree complained of, testified that he did not sign it under any misapprehension or mistake as to its provisions and contents; that the decree was prepared by counsel for the defendants, and in the presence of the court was handed to counsel for the complainants; that counsel for the complainants retained the decree for several minutes, and then handed it to the chancellor, saying, "It is all right;" that he (the chancellor) then read it and signed it, being at the time fully advised as to its contents. Counsel for the defendants testified that the provision complained of was purposely inserted in the decree in order to secure a dismissal of the bill, and the release of the money thereby impounded without bond, before the next term of court, in the event an amended bill was not promptly filed. Counsel for the appellants testified that he did not read the decree, but acted upon the supposition that it contained a simple provision allowing thirty days to amend, and that strict adherence to this provision would not be required or enforced by the appellees and their counsel. Upon this testimony the chancellor decreed that the appellants were "not entitled to any relief under said bill as amended," and dismissed the bill; and from that decree this appeal was prosecuted.
The jurisdiction of equity to correct or set aside a decree on the ground of fraud, accident, or mistake in the entry thereof is well established. Webster v. Skipworth, 26 Miss. 341; Germain v. Harwell, 108 Miss. 396, 66 So. 396; Brown v. Wesson, 114 Miss. 216, 74 So. 831; Corinth State Bank v. Nixon, 144 Miss. 674, 110 So. 430. But, to entitle one to maintain a bill of review to correct or set aside a decree on the ground of mistake, the mistake must be mutual, and unmixed with negligence on the part of himself or his agents. 54 C.J. 754; Thomas v. Phillips, 4 Smedes M. 358; Webster v. Skipworth, 26 Miss. 341; Corinth State Bank v. Nixon, 144 Miss. 674, 110 So. 430.
Applying this doctrine to the facts shown in this record, the appellants have not made a case which entitled them to any relief. There is no evidence of fraud in the preparation and entry of the decree complained of, and the proof establishes the fact that the chancellor was fully advised as to the contents of the decree before it was signed and entered, and that there was no mistake on the part of the court and counsel for the appellees. It is further shown that counsel for the appellees prepared the decree and handed it to counsel for the appellants for his approval, as it was proper to do; that counsel for the appellants retained the decree for a sufficient length of time to have read it, and then handed it to the court with the statement that it was all right. Counsel for the appellants had ample opportunity to read the decree and familiarize himself with the contents thereof, and, if he failed to do so, it was due to no fault of the court or counsel for the appellees.
The decree of the court below will therefore be affirmed.
Affirmed.