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Fowler v. Doyle.

was clear that Michael Doyle had, in law, no interest in the note, at the time the defendant was garnished, it would follow that the latter could not be held as the debtor of Michael.

But, under the doctrine of Duncan v. Roselle, 15 Iowa, 501, we are not satisfied that this note, though payable to the wife of Michael, was not liable for his debt.

It seems that the consideration of the note was the settlement of a suit between Patrick Doyle and Michael Doyle, and certain board and washing done for Patrick by Mary Ann Doyle, the payee.

So far, on the record before us, we have no difficulty. The great contest was, whether this note was transferred by the payee to Holt (the plaintiff's assignor) before or after the defendant was garnished. On the testimony, this point is far from being clear. If it was in good faith transferred before the garnishment, the plaintiff's rights could not be affected by the subsequent garnishment of the maker by a creditor of Mary Ann or Michael Doyle.

If it was transferred afterwards, the plaintiff's rights might be affected by the prior garnishment. The law in this State is clearly settled by the statute and decisions. Rev., § 3211; Gillam v. Huber, 4 G. Greene, 155; Jefferson County v. Fox, Mor., 48; approved 2 G. Greene, 127; Walters v. Washington Insurance Company, 1 Iowa, 404; Burton v. District Township, 11 Id., 165; McCorld v. Beatty, 12 Id., 299; Stephens v. Pugh, Id., 430. Although averred in his answer, the defendant did not prove that the District Court of Webster county had ever rendered judgment against him as garnishee, or that he had ever paid anything upon or in consequence of the garnishment proceedings.

It is evident, from the foregoing, that the actual adversary parties are the plaintiff in this action (Fowler) and the judgment creditor in Webster county, (Reilly). The defendant should not be compelled to pay both. He ought

Fowler v. Doyle.

to pay the one who is legally and justly entitled to payment. The judgment of the Court, in this case, relieved the defendant from any obligation to pay the plaintiff.

If no judgment is ever obtained against him on the garnishment proceedings in Webster county, he may escape payment altogether. If judgment had been rendered in this action, in favor of the plaintiff, this would not be available to protect the defendant from liability on the garnishment proceedings in Webster county. On different, or even upon the same proof, another court or jury may decide differently from what the court did in Jones county, in relation to whether the note was or was not transferred in good faith and before the garnishment.

In this attitude of the case, the Court should have proceeded or have compelled the parties to proceed, under section 2765 of the Revision of 1860. "The Court may determine any controversy between parties, when it can be done without prejudice to the rights of others, or by saving their rights. But when a determination of the controversy between the parties before the Court cannot be made without the presence of other parties, the Court must order them to be brought in."

This section is especially applicable to cases where the debtor is under an apparent liability to two different parties for or on account of the same debt or duty, and only one of them is before the Court.

It was within the power of the plaintiff to have amended his petition, and have made Reilly a party, alleging that he claimed some interest in the debt, evidenced by the note of Patrick Doyle. The Court would, doubtless, have given him leave to have done so, at almost any stage of the cause, or the defendant, under other provisions of the Revision, might have filed a cross-petition, making the plaintiff and Rielly parties to it. As supporting the position that Reilly should have been made a party, see Forepaugh v. Appold,

VOL. XVI.-68

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McGregor v. Gardner.

17 Ben. Monroe, 625, 632; Talbot v. Pierce, 14 Id., 195, 203; decided under similar statute.

It will best advance the ends of justice to set aside the decree below, remand the cause, with directions to the District Court to order the plaintiff or the defendant, as it deems most proper, to bring Reilly in as a party, and he and the plaintiff can then, in one and the same proceeding have their respective right adjudicated. This course will compel the defendant to pay some one, and will protect him from paying twice.

Reversed and remanded.

MCGREGOR V. GARDNER.

1. JURISDICTON OF THE SUPREME COURT. By the express provisions of the Constitution, the jurisdiction of the Supreme Court in chancery causes is appellate only; and in reviewing such causes the Supreme Court will consider only the issues and evidence presented to the Court below; and evidence will not be originally received and considered in the trial de novo of such causes in said court.

2. DECREE: ENROLLMENT. A decree in chancery is constructively taken to be enrolled when the court by which it is rendered has finally adjourned for the term.

3. BILL OF REVIEW: WHEN FILED. A bill of review can be filed only after the final decree.

4. SAME, Quere. Will a bill of review lie in the Supreme Court for errors upon the face of a decree?

5. SAME

COURT BELOW. The District Court cannot sustain a bill of review for errors apparent upon the face of a decree which has been affirmed or rendered by the Supreme Court.

6. SAME: AN ORIGINAL PROCEEDING. A bill of review based upon new matter requiring additional testimony is so far in the nature of an original proceeding that the Supreme Court cannot originally entertain it.

7. SAME, Quere. Would a bill of review, based upon newly discovered facts, be sustained by the District Court, after an affirmance of the decreee, on appeal, in the Supreme Court?

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THE main cause, thus entitled, was decided against the defendants at the December Term of this court, 1862. It will be found reported in 14 Iowa, 326.

On the 15th day of October, 1863, the defendants in that cause, Gardner, et al., filed in this court a "petition in the nature of a bill of review and supplemental bill," so styled. This petition sets forth, generally, the nature of the main cause, its decision by the court below, the appeal to this court, its submission in this court on the merits, and the final decree rendered in this court at the December Term, 1862. It is then alleged "that, after this cause was submitted to this Court, your petitioners (Gardner et al.) discovered evidence material to the cause, of which they were ignorant at the time the cause was submitted." Between the 26th day of September and the 29th day of December, 1862, the said James McGregor, being sworn as a witness by one J. W. Crane, County Judge of S. county, N. Y., in a cause then pending in New York, admitted and testified as follows: [The matters, so admitted and sworn, are then set out at length.]

The petition prays a review and rehearing of the main cause, and that Gardner et al. may be permitted to prove the above facts by the said Crane.

The petition also sets out, that the Court, in the opinion, reported in 14 Iowa, 326, erred in its findings of fact and law, specifying wherein; but it alleges no error on the face of the decree or record.

And the final prayer is, that the cause may be heard upon the said supplemental matter at the same time it is reheard upon the original and supplemental information, as to newly discovered evidence, that the decree at the December Term, 1862, be set aside; that petitioners have leave

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McGregor v. Gardner.

to produce the newly discovered evidence aforesaid, and that they have such other and further relief as shall seem meet, &c."

Against this petition, the following motion was made, to wit:

1. Now comes James McGregor, Jr., by James M. McKinlay, his attorney, and moves the Court to strike from the files of the court a paper filed by Bissell & Shiras, attorneys, in October last, and entitled as follows:

"JAMES MCGREGOR, JR.,

vs.

GEORGE D. GARDINER et al. plemental bill."

In the Supreme Court of Iowa. Petition in the nature of a bill of review and sup

For the want of jurisdiction in this court to hear or consider the same:

2. And further moves, de bene esse, to strike said paper from the files, because no bill, in the nature of a bill of review, nor supplemental petition can be filed after enrollment of the decree, that is to say after decree rendered and adjournment of court to the next term.

3. And further moves, de bene esse, to strike out the first part of said paper, because as is apparent from it and the record, the supposed new matter is such, that the party with the use of reasonable diligence could have known it. Nor is it new matter, but only supposed new proof, and the same might have been used when the decree was made.

4. And further moves, de bene esse, to strike out the balance of said paper, because after enrollment of the decree (that is to say after decree rendered and adjournment of court to the next term), it is beyond the power of the court to open the same, or reconsider what has been adjudged. JAMES M. MCKINLAY, Attorney for James McGregor, Jr.

Upon this motion, the proceeding is now before us.

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