Parish v. Marvin

The circuit court of one county has no jurisdiction of an action brought to review and reverse the judgment of the circuit court of another county, on the ground of errors apparent on the face of the record, or on that of newly discovered evidence. If proceedings in the nature of a bill of review may still be taken, they must be had before the court by which the judgment was rendered. When a review is sought on new evidence, liberty to file the complaint must first be obtained from the court, upon petition supported by affidavit.

APPEAL from the Circuit Court for Orawford County. One Hale obtained in the Dane circuit court, a judgment of foreclosure and sale upon a mortgage made by one Massing to secure anote executed by him to Parish, and indorsed by Parish to a third person, under whom Hale claimed. The judgment directed payment by Massing and Parish of any deficiency; and by a subsequent order of said court, execution was issued against them for a deficiency, upon which certain land of Parish, in Crawford county, was levied upon and sold. Marvin claimed some interest in the land by assignment of the certificate of sale or otherwise. This action was brought by Parish in the Crawford circuit court, to review and reverse, as to him, said judgment and proceedings ; to have said levy and sale declared void; and to restrain the execution, by the sheriff, of a deed of the land. The grounds upon which the relief was sought are sufficiently stated in the opinion of the court. A demurrer by Marvin to the complaint, on the ground that it did not state a cause of action, and that the Crawford circuit court had no jurisdiction of the cause, was sustained; and the plaintiff appealed. I. Prior to the Code, a proceeding like the present would have been by bill of review. Welford’s Eq. PI, 124, and cases there cited. The object of a bill of review is to procure an examination and modification or reversal of a decree which has been signed and enrolled. 2 Barb. Ch. Pr., 90; 4 J. J. Marsh., 500; 17 Vesey, 178; 16 id., 850; 6 Madd., 127. A bill of review will lie for errors apparent on the face of recor<^ C2 BaH. Oh. Pi\, 90); and also for newly discovered evidence material to the issue. 2 id., 92 ; Dexter vs. Arnold, 5 Mason, 803. 2. The Code has not in any way affected the rights of parties, or abridged their remedies. R. S., 1858, chap. 125, sec. 1; Yan Santvoord’s PL, 65-69; Willard’s Eq. Jur., 35-44. 3. The foreclosure suit was at an end; a final judgment had long since been entered ; other parties than those appearing on the record had become interested, and these could be brought into court and their rights adjudicated in no other way than by the commencement of a new suit. 2 Barb. Oh. Pr., 98-100; Story’s Eq. PL, §§408, 420; 13 Peters, 6, 15 ; 3 Oranch, 179 ; 3 Story, 299. Again, a decree or judgment of a court of equity can be impeached for fraud in no other way than by original suit. Story’s Eq. PL, 426, note 2 ; Kennedy v. Daly, 1 Sch. & Lef., 355, 374; Bennett v. Hamill, 2 id., 576; Barnesly v. Powel, 1 Yesey, Sen., 120; 1 P. Wins., 736-7. 4. The statute requires suits for the determination of any right or injury to real property, to be brought in the county where the subject of the action, or some part thereof, is situated. R. S., 1858, chap. 123, sec. 1. 5. If the action was commenced in the wrong county, no advantage could be taken of it by demurrer. A demand should have been made in writing that the trial be had in the proper county, and the place changed by consent of the parties, or by order of the court. R. S,, chap-123, sec. 4.