Shelton v. Van Kleeck

Mu. Chief Justice Waite delivered the opinion of the court.

The only questions open for examination on a bill of review for error of law. appearing on the face of the record are such as arise on the pleadings, proceedings, and decree, without reference to the evidence in the cause. This has been many times decided in this court.

Whiting v. Bank of the United States, 13 Pet.

6; Putnam v. Day, 22 Wall. 60 ;

Buffington v. Harvey, 95 U. S. 99 ;

Thompson v. Maxwell, id. 391.

A demurrer admits only such facts as are properly pleaded. As questions of fact are not open for re-examination on a bill of-review for errors in law, the’truth of any fact averred in that kind of a bill of review inconsistent with the decree is not admitted by a demurrer, because no error can be assigned on such a fact, and it is, therefore, not properly pleaded. This disposes of ’ the first, second, third, fourth, and fifth specifications of error presented in this bill of review. They are all errors of fact, and can only be determined by a reference to the evidence. It nowhere appears from “the bill, answer, and other pleadings, together with the decree,” constituting.what Mr. Justice Story said, in Whiting v. Bank of the United States, supra, “ is properly considered as the record,” that there was any usury in the case, or that the appellants had not waived their homestead rights as alleged in the bill.

All the allegations of error on the face of the record are equally bad. It is statéd in the decree that all the material averments of fact in the bill were proved, and on these facts the priority of the lien of the complainant was established.

*535 All the issues were thus disposed of, and the decree was in favor of the complainant and against all the defendants. The omission of the name of McGregor from among those against whom it was stated in the decree the bill was taken as confessed, is unimportant. If, as is stated in the brief of counsel for the appellant, he was served with subpoena, and did not plead, answer, or demur to the bill, the decree was in fact pro confesso as to him, and' he is as much bound as if he had been particularly named.

All the new matter alleged to have been, discovered relates to the proceedings in making the sale, and can have no effect on the original decree. So far as the • decree confirming the sale is concerned, the matter is not new/ for the addition to the transcript, filed" by consent, shows that all the affidavits now relied on to establish the new facts were actually read in evidence on the hearing of a motion, made before the confirmation, to set aside the sale. These affidavits cannot be considered on a bill of réview to reverse the decree of confirmation for errors appearing on the face of the record, because as evidence they form no part of the record which can be looked into on such a review. But, as part of the exhibits annexed to a bill of review for alleged discovery of new matter, they may-be referred to for the purpose of détermining whether, upon the showing of the complainant in review, the matter alleged to be new first came to his knowledge -after the time when it could have been made use of at the original hearing.

This disposes of the case; and the decree dismissing the. bill of review is Affirmed.