Picabia v. Everard

A final decree, regularly obtained and enrolled, *114cannot be opened or altered in this court, but on a bill of review; and if not enrolled, but regularly obtained and entered on the minutes, it can be corrected only on a re-hearing, (Bennett v. Winter, 2 J. C. R. 205;) and in the latter case, the court will not, on motion, entertain an application to vary it, unless by consent of all parties, or in respect of matters which are quite of course, as in case of a clear mistake in the counsel’s drawing it up, (1 Paige, 189 ; 7 ib. 382,) or where some ordinary direction has been omitted, (1 Russ, 475 ; 4 J. C. R. 546,) or where costs have, by inadvertence, been given to a party not entitled to them (2 Wend. 221;) but except in matters of form or clerical errors, or where the matter is clearly consequential on the directions already given, it is a principle of the court, which it would be unsafe to depart from, that no alteration can be made in a decree on special motion. It would, therefore, in my opinion, be improper to grant the motion to amend.

Hor is the other branch of the petitioner’s application without its difficulties. He very naturally asks, why the court should refuse to let a man discontinue a suit in his own favor, even after he has got a judgment ? But several quite cogent reasons suggest themselves in answer to the question.

Where a bill is dismissed by order of the court, it is a bar to another suit; but where it is voluntarily dismissed by the plaintiff himself, he may sue again. To establish a precedent which should give the plaintiff this right especially after decree, might be made to operate vexatiously and oppressively. Every decree affects other rights besides those of the plaintiffs. All parties become interested in it, and any of them may take steps to have the effect of it. (Carrington v. Solly, 1 Dickins’ R. 281.)

In this very case the question may arise, whether Burke, one of the trustees who executed the mortgage, is not personally liable for any deficiency. Such personal liability may not have been decreed in this case, yet, by allowing a new suit, he may be subjected to a litigation on that point. This would not be just to him without his consent, and therefore it was that I inquired on the hearing whether the petitioner would take a dismissal of the suit, with a stipulation waiving his personal liability, to this I understood Burke to consent; but the petitioner very properly replied, that as administrator, he had no authority to make'such an arrangement, and so Burke persists in his opposition to the motion.

How, T understand it to be a rule of this court, not to suffer a plaintiff to dismiss his bill after a decree, unless upon consent. (1 Barb. Ch. Pr. 228; 1 Dan. Ch. Pr. 930; Lashley v. Hogg, 11 Vesey, 602; Gilbert v. Faules, 2 Freem. 158; Anon. 11 Ves. 169.)

*115I do not, then, well see how I can grant this part of the motion even, without establishing a precedent which may be fraught with much mischief. It is true that I do not see the prospect of doing much mischief in this particular case, for except as to Burke and and his co-trustees; it does not seem to be a matter of any consequence to any of the parties; and as to them, their liability may be already established; for as the decree is not before me, I do not know how that is. But it is the danger of the precedent which affects me, and I do not therefore look so clearly as I otherwise should into their exact position.

The petitioner, however, is not without all remedy. He may himself become the purchaser on his mortgage sale, and then contest with Bishop Hughes the amount due to him; or he may offer to redeem from him, and it has occurred to me that perhaps he may get rid of the decree, by obtaining a re-hearing. (Gardner v. Dezing, 2 Edw. 131; Clarice v. Hall, 7 Paige, 382.)

Be that, however, as it may, I can not feel myself at liberty on this motion to grant the petitioner either of the forms of relief which he asks.

The motion must be denied, but without costs.