Opinion
Opinion filed August 31, 1951.
1. EQUITY.
A bill of review may be filed for error of law apparent on face of record without leave of court, or with leave of court for newly discovered evidence.
2. EQUITY.
A bill of review will not lie for newly discovered evidence which is merely cumulative.
3. EQUITY.
Bill of review for newly discovered evidence must show that evidence came to light after decree was made, that it was material and that it would probably change result, and that it could not possibly have been used when decree was pronounced.
4. AUTOMOBILES.
In proceeding against property owners to review permanent injunction prohibiting complainant from erecting filling station, finding of chancellor in prior proceeding that to construct station as and where proposed would constitute a nuisance in fact, as distinguished from a nuisance in law, was not shown to be erroneous or unwarranted.
5. EQUITY.
Function of bill of review filed for newly discovered evidence is to relieve meritorious complaint from clear miscarriage of justice where court is able to see, upon view of all circumstances, that remedy can be applied without mischief to rights of innocent parties, and without unduly jeopardizing stability of judicial decrees, and the remedy is not a matter of absolute right, but of sound discretion.
6. AUTOMOBILES.
EQUITY.
Where construction of filling station as and where complainant proposed would constitute a nuisance, that ordinance prohibiting erection of filling stations in area was repealed would not entitle him to erect station, and did not authorize review of injunction on ground of newly discovered evidence.
FROM McMINN.O.W. McKENZIE, of Dayton, and CANDLER HITCH, of Athens, for plaintiff.
FRANK N. BRATTON, and TOM TAYLOR, both of Athens, for defendants.
Proceeding by James Pointer against Ralph Davis and others to review a permanent injunction prohibiting plaintiff from erecting a filling station. The Chancery Court, McMinn County, GLENN W. WOODLEE, Chancellor, sustained defendants' demurrer to plaintiff's bill of review, and he appealed. The Supreme Court, PREWITT, Justice, held that where the proposed filling station had been held to constitute a nuisance, the Chancellor properly sustained defendants' demurrer to plaintiff's bill of review on the grounds of the newly discovered evidence and that an ordinance prohibiting the erection of filling stations in the area had been repealed.
Decree sustained without prejudice.
This appeal is from a decree sustaining a demurrer to the bill of review filed by complainant James Pointer. The lawsuit revolves around a vacant lot in Athens on U.S. Highway No. 64. This is the second suit involving the lot. The first suit was instituted by the property owners against Pointer seeking an injunction against him for erecting a filling station at the point in controversy. Much proof was introduced by both parties and in his decree, the Chancellor made the injunction permanent, holding that a filling station to be erected on the lot would be a nuisance per accidens but not per se. The basis of the decree was that the filling station was located within a thousand feet of the high school, was on a much travelled street, that noxious odors would emit from the filling station, and that crowds would congregate and be noisy. One of the principal grounds set out in the bill was that the city had enacted an ordinance forbidding the erection of filling stations in the area. From this decree the complainant in this case did not appeal, stating in this bill that the reason for not appealing was on account of such ordinance. The first suit was filed in 1947.
The Chancellor's opinion reveals that this lot is situated on Ingleside Avenue and was at one time a strictly residential section but now the avenue is on the arterial highway No. 11, and known as the Lee Highway, and one of the most heavily travelled highways in the country. There is located in this section and on said avenue apartments, rooming houses, a public school, a filling station, a garage, Ingleside Motel, and International Harvester Company, where farm implements or hardware are sold; nearby lawn furniture is manufactured. It further appears that these business enterprises have been erected and operated since the passage of the above ordinance already referred to.
In sustaining the demurrer to the present bill, the Chancellor stated in his decree of dismissal that the bill of review set up new matters in existence subsequent to the entry of the decree in the first suit — that is, the repeal of the prohibitory ordinance.
Under our practice, a bill of review may be filed for (1) Error of Law apparent on the face of the record, without leave of Court. (2) With leave of Court for newly discovered evidence.
In the present case, there is no insistence that there was error of law apparent on the face of the record and, therefore, the bill of review must stand or fall on the sufficiency of the newly discovered evidence presented by the bill.
A bill of review will not lie for newly discovered evidence which is merely cumulative, McGuire v. Gallagher, 95 Tenn. 349, 32 S.W. 209, and the bill of review must show that the evidence came to light after the decree was made; that it was material and that it would probably change the result, and that it could not possibly have been used when the decree was pronounced, Maddox v. Apperson, 82 Tenn. 596; Arnold v. Moyers, 69 Tenn. 308.
In the original proceedings the Chancellor found as a fact, that to construct a filling station as the defendant proposed to construct it, and where the defendant proposed to construct it, would constitute a nuisance per accidens, or in fact, as distinguished from a nuisance per se or in the law. There is no evidence presented in the present bill of review that tends to show that the former finding of fact by the Chancellor was, at the time of its finding, erroneous or unwarranted.
"The function of a bill of review filed for newly discovered evidence is to relieve a meritorious complainant from a clear miscarriage of justice where the court is able to see, upon a view of all the circumstances, that the remedy can be applied without mischief to the rights of innocent parties, and without unduly jeopardizing the stability of judicial decrees. The remedy is not a matter of absolute right, but of sound discretion." Hopkins v. Hebard, 235 U.S. 287, 290, 35 S.Ct. 26, 27, 59 L.Ed. 232, 234; Thomas v. Brockenbrough, 10 Wheat. 146, 6 L.Ed. 287; Ricker v. Powell, 100 U.S. 104, 107, 25 L.Ed. 527, 528; Craig v. Smith, 100 U.S. 226, 233, 25 L.Ed. 577, 580; 2 Dan. Ch. Pr. 1577; Story, Eq. Pl., Section 417; Street, Fed. Eq. Pr., Sections 2143, 2156, 2159; Gibson's Suits in Chancery, Sections 1058, 1062.
Under the facts, the Chancellor did not abuse his discretion in sustaining the demurrer. We think his decree should be sustained without prejudice on the part of complainant to assert any right he may have in another proceeding.
All concur.