Joseph M. Michel, Appellant, vs. John S. Sammis, Appellee, 15 Fla. 308

RANDALL, C. J., delivered the opinion of the court. .The complainant Michel filed his bill in the Circuit Court for Duval county, alleging that he is a citizen of this State, the head of a family entitled to hold a homestead. That he owns a lot in the incorporated city of Jacksonville, and occupies it with his family as a homestead, it being less than one-half an acre of land, and that the defendant, through and by the sheriff of Duval county, by virtue of legal process, is about to sell the lot, and has advertised it for sale.

That the intended sale is not for taxes or for purchase money or for improvements or for labor on the same, wherefore he prays an injunction to prevent the sale. A temporary injunction was allowed. The defendant filed a plea alleging that in June, 1870, he loaned the appellant five hundred dollars, and took his promissory note therefor, secured by a mortgage upon the premises in question, the mortgage being in the usual form, duly executed and recorded.

That in May, 1873, he commenced suit in equity to foreclose the. mortgage; that Michel and his wife were duly served with the process of the court, and on the 26th day of August, 1874, a final decree of foreclosure and sale was duly entered and signed in the Circuit Court.for Duval county, and that by virtue of said decree he was about to sell the property, this being the same matter of which the appellant complains in his bill. The cause was set down for a hearing upon the bill and plea, and the court refused a permanent injunction and dismissed the bill, whereupon complainant appeals.

The question of the exemption of the mortgaged premises as a homestead under the Constitution and laws of this State, was ‘the only question discussed by counsel for appellant. "We would cheerfully proceed to the decision of that question in this case if it were possible, biit the law and the well established principles of judicial action forbid it.

The plea alleges that the mortgaged premises have been condemned to be sold to pay the mortgage debt; that the decree was made by a competent court having jurisdiction of the subject matter and of the parties, and thereby it was determined and adjudged by that court that the property was liable to be sold to pay that debt. This plea is not controverted, and the cause was heard as upon demurrer to the plea. The question now presented is, whether the bill in this ease can be maintained ? whether the decree of foreclosure can be examined and reversed, set aside or enjoined upon the grounds alleged ?

A bill of review and a bill in the nature of a bill of review, are the only bills which can' be brought to affect or alter the decree, unless it has been obtained by fraud. (Daniel’s Ch. Pl. and Pr., 4 Am. Ed., 582 ; 1 Fla., 455 ; 9 Fla., 325.) The true office of this sort of bill as now used, is to bring before the court new matter discovered since publication in the original cause when the decree has not been signed and enrolled. (Story’s Eq.

Pl., Sec. 422.) It seems to- be a general rule that a supplemental bill for newly discovered matter should be filed as soon after the new matter is discovered as it reasonably may be. If, therefore, the party proceeds to a decree in the original suit after the discovery of the facts upon which the new claim is founded, he will not be permitted afterwarfis to file ¡a bill in the nature of a bill of review founded on these facts, for it was his own laches not to have brought them forwaiH at an earlier stage. Ib., § 423 et seq., and authorities there .cited; Miller vs. Sherry, 2 Wall, 373; Haynes vs.

Meek, 14 Iowa, 320. There being no fraud nor no new matter charged as the ground for relief, this bill is not a bill of review or in the nature of a bill of review, which we have seen are. the only-known methods of attacking a decree for the purpose of availing the party of matters of defence not already interposed, and which matters of defence must have come to his knowledge or possession since the decree.

Obviously the matters alleged in this bill were within the knowledge of the appellant at and before the commencement of the foreclosure suit, and there is no pretense of fraud or over-reaching on the part of the original complainant.

The Supreme Court of Texas, which has gone quite as far in the protection of the homestead from sale under.mortgage foreclosure as any other court, if not a little farther, has said in respect to the conclusiveness of a judgment or decree : “ It is an elementary principle, which dees not require the support of argument or authority, that the judgments of a court of competent jurisdiction are revisable only by an appellate court, and cannot be impeached collaterally.

So long as the ¡¡judgment remains in force, it is in itself evidence-of the right of the plaintiff to the thing adjudged, and gives him a right to possess and execute the judgment. (Citing 10 Pet., 449.) It is not necessary to the conclusive-ness of the former judgment that issue should have been taken upon the precise point which it is proposed to controvert in the collateral action.

It is sufficient if that point was essential to the former judgment. * * * That question, therefore, it was not competent for the defendant to bring again into litigation in this action, unless it had been proposed to impeach that judgment on the ground of fraud, which is not pretended or averred in respect to the judgment.” (Lee vs. Kingsbury, 13 Texas R., 68.) “If the decision was erroneous, the defendant had his remedy by an appeal or writ of error to reverse the judgment.

There is nothing in the nature of the right of homestead to exempt it'from the operation of the general principle. * * * If the appellant 'had made the proof in the former case, which he has made in this, the court must have adjudged the question in his favor, or its judgment must have been reversed upon appeal to this court. If he neglected or failed to make the proof, the court could not do otherwise than render the judgment which was rendered in' the case.” (Tadlock vs. Eccles, 20 Texas R., 782.) It is thus found that the court could not entertain this suit.

There would be no end of litigation, and the right of property would never be safe if a different rule should be allowed to prevail. The d,eeree of the Circuit Court is affirmed.