William H. Reynolds, as Comptroller, and John A. Pearce, as Sheriff, Appellants, vs. The Florida Central and Peninsula Railroad Company, Appelle, 42 Fla. 387

Mabry, J.: (After stating the facts.) The record evidence in this protracted case shows that the appellee, the Florida Central and Peninsular Railroad Company, was organized under our general incorporation laws in 1888, for the purpose of owning and operating the properties of the Florida Railway and Navigation Company, a consolidated railway company, under the laws of this State. The entire properties of this latter corporation were sold in 1889 under decrees in the Circuit Court of the United States for the Northern District of Florida, and were purchased by W. B.

Cutting, as agent, and he and his associates, undier the organization of the Florida Central and Peninsular Railroad Company, assumed possession of the properties so purchased. The Florida Railway and Navigation Company was formed in February, 1884, by consolidation of the, Florida Transit and Peninsular Railroad Company, the Florida Central and Western Railroad Company, the Fernandina and Jacksonville Railroad Company and the Leesburg and Indian River Railroad Company. All of these consolidated lines, involved in this appeal, were constructed prior to 1868 and were entitled to the benefits of

an act of the legislature of this State, passed in 1855, and commonly known as the Internal Improvement Act.

For non-compliance with the requirements of this act in the payment of interest on bonds that had accrued to the Internal Improvement Fund by reason of its guarantee, of the payment of such interest, the entire lines of road now owned by appellee, but then owned by separate organizations, extending from Jacksonville to Quincy, and from Fernandina to Cedar Keys, were sold in the years 1866, 1868 and 1869 and the purchasers organized separate corporations to operate them; one as the Florida Central Railroad Company, extending from Jacksonville to Lake City, one as the Jacksonville, Pensacola and Mobile Railroad Company, extending from Lake City to Quincy, including branches to St.

Marks and Monticello, and one as the Florida Railroad Company (assuming the same name), extending from Fernandina to Cedar Keys.

The Jacksonville, Pensacola and Mobile road extended its line by construction to Chattahoochee,prior to 1873, It has always been a conceded fact that the 'original lines of railroad built in compliance with the requirements of the Internal Improvement Act prior to 1868 were entitled to the exemptions and benefits therein provided, but subsequent to' the .adoption of the constitution of 1868 it has not been universally admitted that the corporations subsequently organized for their ownership and control were entitled to exemption from taxation under that constitution.

It is true that the purchasers of such lines of railroad claimed the benefit of such exemption and for many years failed to pay any taxes, but the legislative branch of the, State government challenged such right, and in 1881 by joint resolution instructed the Governor and Comptroller to institute legal proceedings against the, roads, to test the right of exemption from taxation claimed by them. Acts 1881 page 217. The result of the litigation that ensued was adverse to the claim of such roads that .the: exemption provided for in the eighteenth

section of the Internal Improvement Act was an incident of the property and followed it into the, hands of purchasers under new organizations, and the roads in such hands were declared to be subject to taxation under the constitution of 1868. Palmes v. Louisville and Nashville Railroad Company, 19 Fla. 231, Ibid. 109 U. S. 244, 3 Sup. Ct. Rep. 193. In 1885 the legislature by act,

Chapter 3558, provided that in all cases in which any railroads or the properties thereto belonging or appertaining in this State in the tax years commencing March 1st, 1879, 1880 and 1881, or any of such years, were not assessed for taxes for such years, it should be the duty of the Comptroller to cause the same, or so much thereof as were not assessed, to be assessed for State and county taxes to the extent and in the, manner therein provided. Under this act certain lines of road now owned by appellee and involved in this appeal were assessed in 1885 by the Comptroller for the years 1879, 1880 and 1881, and subsequently in 1891 an additional act was passed,

Chapter 4073, to facilitate the collection of the taxes so assessed. In November, 1892, appellee filed its bill claiming the right as sucessor of the Florida Railway and Navigation Company to recover from, the State certain taxes collected from the, latter company in part for the year 1881 and for the years 1882, 1883 and 1884, but this clemand was refused by the Circuit Court in the first instance, and the decision to this extent was affirmed by this court. Bloxham, Comptroller, vs. Florida Central and Peninsular Railroad Company, 35 Fla. 625, 17 South. Rep. 902.

The bill also claimed that all of its constituent lines built under the Internal Improvement Act, or on the routes contemplated by it, were entitled to the exemption of taxation therein provided, which was an effort to reopen and relitigate the, questions settled in the case of Palmes v.Louisville and Nashivlle Railroad Company, supra. This contention was rejected by the Circuit Court, and its ruling was alsoi affirmed on the first appeal to this court.

The bill had another object in view, and that was to restrain the collection of the taxes for the years 1879, 1880 and 1881, on the ground that the State legislation under which the assessments were made was unconstitutional and void.

In this connection it may be stated that appellee’s bill in setting up its several claims to relief in demanding a return of taxes paid by the Florida Railway and Navigation Co., and in seeking to have established its right to exemption from taxation under the Internal Improvement Act, detailed a history of the constituent lines of its road, and distinctly claimed to be a purchaser for value in 1889 of all the properties involved, and that its properties were not liable for back taxes assessed for years long prior to their acquisition.

It claimed as purchaser of the Florida Railway and Navigation Company under judicial proceedings based upon claims of creditors and for a default in the payment of interest on mortgage bonds issued by this company to retire underlying bonds issued by its constitutent companies. It was also alleged that the Florida Railway and Navigation Company had acquired it properties in 1884 before the assessment was actually made by the Comptroller, and that it was not competent for the State to go beyond that year in the collection of back taxes.

It appeared from the allegations of the bill that the Florida Railway and Navigation Company was formed in February, 1884, by consolidation with other companies, one of which was the Florida Central and Western Railroad Company, extending from Jacksonville to Chattahochee; and in reference to this line it is averred that under the terms of the statutory mortgage created by

Chapter 1716 laws of Florida all that portion of road between Jacksonville and Chattahoochee, including branches to Monticello and St. Marks, was sold to Edward J.

Reed on the 25th day of September, 1879, under decree of foreclosure, and that Reed and his associates organized the Florida Central and Western Railroad Company which became invested by deed from Reed dated 28th February, 1882 with all the rights, privileges and immunities covered by said mortgage, and of the charters and statutory benefits of the several constituent companies, but without becoming in any way obliged to pay any of the debts or obligations of any of such companies.

The Circuit Court sustained the contention of appellees that the act of the legislature directing the levy of the tax was unconstitutional, and enjoined the collection of the taxes for the years 1879, 1880 and 1881. On appeal this decision was reversed and the act held to be valid.

Proceeding upon the theory that, when the time for assessing taxes has passed and there is no statute fixing a tax lien upon property subject to taxation, and no steps have been taken by the State to collect taxes due, real estate can not be pursued for back taxes in the hands of innocent purchasers for value, this court examined the contention of appellee that it was an innocent purchaser within the principle stated. The decision was adverse to such contention. Bloxham, Comptroller, v. Florida Central and Peninsular Railroad Company, 35 Fla. 625, 17 South. Rep. 902.

When appellee purchased in 1889 the taxes had long since been assessed and the State was proceeding to- collect the same. The consolidation of the Florida Railway and Navigation Company, the immediate predecessor of appellee, occurred in 1884 after the resolution of the legislature had been passed, but the decision was placed upon the ground that the consolidation of railroads under the laws of this State did not make them innocent purchasers for value So as to exempt their property from taxes justly due thereon, but not assessed before, the consolidation took place.

Reed was alleged to be a ptirchaser at judicial sale in September, 1879, and in connection with associates formed the Florida Central and Western Railroad Company, one of the consolidated constituents of the Florida Railway and Navigation Company, and on such a state of facts the taxes were declared to be valid charge on the property specified in the opinion of this court rendered at the January term, 1895. 35 Fla. 625, 17 South. Rep. 902. The decision then made on record presented was final, and left nothing for the Circuit Court to do except to entera decree in compliance with the mandate sent down.

Instead of doing so, the Circuit Court permitted a supplemental bill in the nature of a bill of review to be filed, and on appeal this bill was directed to be dismissed, as being filed without leave obtained from this court. 39 Fla. 243, 22 South. Rep. 697.

It was there clearly pointed out that when the appellate court affirms or modifies a decree of a lower court, either as to questions of law or fact necessarily involved, with directions for further proceedings consistent with the opinion, the lower court has no authority tO' open the case, or enter any other judgment than that directed to be entered, unless authority to do so be given by the appellate court.

In view of what was disclosed in the petition and supplemental bill in the nature of a bill of review in reference to that portion of appellee’s line of road from Jacksonville to Chattahoochee, this court was constrained to grant appellee leave to be, heard by the Circuit Court on an application for leave to file a bill of review on newly discovered evidence to the extent of the line mentioned, and an order was made to this effect.

On petition filed for that purpose the Circuit Judge granted leave to file a hill to review not only that portion of the decree affecting the line of road from Jacksonville to Chattahoochee, but other portions of the road, and not only on the ground of newly discovered evidence, but for errors of law apparent on the record and alleged to have been committed by this court.

This was entirely beyond the scope of the permission given by this court, .as the Circuit Court had no jurisdiction or authority to permit the decree to be reviewed to any extent beyond that affecting the line from Jacksonville to Chattahoochee, and to this extent only upon the ground of newly discovered evidence. This was clearly pointed out in the decision on the prohibition proceedings reported in 40 Fla. 297, 24 South. Rep. 160.

It appears from the record before us that, notwithstanding the decision referred to the bill permitted to be filed remained unaltered and the court proceeded on final hearing to deny the relief asked as to other matters not affecting the line of road from Jacksonville to Chattahoochee. In this respect no relief was granted to appellee, but it is entirely clear from what this court has already decided in this case that the action of the court in undertaking to decide anything affecting the decree directed to be entered by this court beyond the permission granted was improper and without any authority.

What the court undertook to decide beyond the scope of the permission granted is void and must be regarded as forming no part of the case. The court should never have entertained an application to review any portion of the decree beyond the leave granted by this court, and after the decision on the prohibition proceedings the pleadings should have been reformed so as to confine the allegations to the matters authorized to be investigated.

The decree as to all other matters had long before be,com-e a finality not subject to be disturbed by even this court, and the contention made here by counsel for appellee that the present appeal opens up the entire case from the beginning is so groundless as to merit no consideration.

An appeal from a chancery decree under our system opens up the case for review in the appellate court, but the present case has .already been before this court on appeal, and a decree directed to be entered by the lower court, with permission to apply to that court for leave to file a bill to review only a part of the decree when entered on the ground of newly discovered evidence.

To the extent of the permission given the parties had a right to be heard before the Circuit Court and its action in reference to such is subject to review; but the decree in all other respects was final when entered, and must be so regarded. The enquiry, therefore, on this appeal must be confined to the action of the court in reference to the permission to file, or the sustaining of the bill filed, tO‘ the extent of the line of road from Jacksonville to Chattahoochee on the ground of newly discovered evidence.

After the entry of a final decree parties can not as a matter of right file a bill of review on the ground of newly discovered evidence. Leave of the court to file the bill must first be obtained and the granting of such leave rests in the sound discretion of the court. The regular chancery practice recognizes a petition to the court in which the final decree is entered as the proper procedure to obtain leave to file such bill.

The showing to be made on this application, including the character of the evidence, its discovery and the required diligence in reference thereto, has been considered by this court in the cases of Owens v. Adm'r. of Forbes, 9 Fla. 325, and Finlayson v. Lipscomb, 16 Fla. 751, and we will not, in this connection, repeat what was then said. Under our laws the preliminary action of the court in granting leave to file the bill on the ground of newly discovered evidence is subject to revision by the appellate court. The appeal in the case of Owens v.

Forbes was from an order granting leave to file a supplemental bill in the nature of a bill of review, and the court said it was authorized by the act of the legislature of January 7th, 1853. This act, in reference to the right to appeal, is the same as

section 1457 Revised Statutes, and authorizes appeals from any interlocutory order, decision, judgment, or decree of the Circuit Courts when sitting as courts of equity. In the case of Finlayson v. Lipscomb this court reviewed and reversed the action of the lower court in granting leave to file a bill of review after demurrer to the bill permitted to be filed. It must, therefore, be accepted as settled with us that the right to object to the court’s action in permitting the bill to be filed is open to the party against whom it is presented.

In the present case we do not determine whether the court erred in permitting the bill of review to be filed on the showing made for that purpose, as the decree rendered on the bill must be reversed on a point arising thereunder, even if we were to concede that leave to file the bill was properly granted. We deem it proper to say, in view of the contention made here by counsel for appellee, that the permission given by this court to apply to the Circuit Court for leave to file a bill of review simply left appellee free to do so.

The application,, if made, was to be judged of by the lower court under the rules applicable to such matters. This court was induced to grant the permission from what appeared on the record before it, but it did not undertake to determine the sufficiency of an application that might be made to a court that was required to exercise its judicial discretion in reference thereto in the first instance.

The bill of review for newly discovered evidence must allege that it is filed by leave of the court, must state the former bill and proceedings, including the final decree entered and the particulars in which the party conceives himself aggrieved, and it must also state distinctly and specifically the evidence alleged to be discovered and that it came to the knowledge of the party after the final decree was entered, or too late to be used at the hearing, and that by the exercise of reasonable diligence it could not have, been discovered sooner. “The newly discovered evidence must be relevant and material, and such as might probably have produced a different determination.

The new matter must Have first come to, the knowledge of the party after the, decree. The matter must not only be new, but it must be such as the party, by the use of reasonable diligence, could not have known. It must not be merely cumulative, nor merely corroborative or auxiliary to what is already in the case; but must establish a new fact of itself decisive of the merits of the cause.” Owens v. Forbes, supra.

The requirements stated by this court in the case, referred to, are enforced by the authorities generally, in text-books and adjudicated cases, and they are material matters not only to be alleged but established by proof. The ordinance of Lord Bacon that is the basis of all the law on this subject is even more rigid in its requirements than the rule laid down in this court. 2 Barb. Ch. Pr. page 91. There is a decision in Maryland (Hodges v. Mullikin, 1 Bland’s Ch.

Rep. 503), to the effect that in an application for leave to, file a bill of review on the ground of newly discovered evidence the question of the new discovery must then be traversed and finally determined and not left open for the bill itself, but this decision has not been followed by other courts. The authorities are practically unanimous in holding that after the bill of review is filed it may be demurred to for sufficient reasons or answered and an issue made on the allegations therein. This was the view of Judge Story in Dexter v.

Arnold, 5 Mason 303, referred to, with approval in the decision of this court in Owens v. Forbes, and was expressly so held in Elliott v. Balcom, 11 Gray 286. See, also, the following" authorities: Mitford’s & Tyler’s Pl. & pr. 186; 2 Daniell’s Ch. Pl. & Pr. (6th Am. Ed.) 1584; Story’s Eq. Pl. (10th ed.) §§ 420, 834; 2 Barb. Ch. Pr. 99; Mattair v. Card, 19 Fla. 455; Lewellen v. Mack-worth, 2 Atkins 40; Jenkins v. Prewitt, 5 Blackf. 7; Burson v. Dosser, 1 Heisk. 754; Carter v. Stennet, 10 B. Monroe 250; Greer v. Turner, 47 Ark. 17, 14 S. W. Rep. 383; Bartlett v. Gregory, 60 Ark. 453, 30 S. W. Rep. 1043; Ketchum v.

Breed, 66 Wis. 85, 26 N. W. Rep. 271; Nichols v. Heirs of Nichols, 8 West Va. 174; Buffington v. Harvey, 95 U. S. 99. The right to have a decree regularly made and entered reviewed on the ground of newly discovered evidence depends essentially upon the fact that the new evidence came to the knowledge of the party after the decree was made and could not, by the use of reasonable diligence, have been earlier discovered. This fact con stitutes an essential equity in the maintenace of a bill and must be proven when put in issue. Alder v. Vankirk Land and Construction Co., 114 Ala. 551, 21 South. Rep. 490.

The new matter alleged in the present bill to have been newly discovered after the final hearing is that during the entire time between September, 1879, and February 28th, 1882, the period for which the taxes involved were assessed, a company known as the Jacksonville, Pensacola and Mobile Railroad Company owned the line of road from Lake City to Chattahoochee, with branches to St.

Marks and Monticello, and from September, 1879, until the sale of this road and its confirmation it was in the hands of receivers appointed by the United States Court; and that the purchasers of this road, Jackson, Simonton and Engler, conveyed the same to Edward J.

Reed, who before this date did not own, possess or receive the income arising therefrom; that the portion from Lake City to Jafcksonville was owned and possessed by the Florida Central Railroad Company prior to January, 1882, when it was purchased by Reed, who after the confirmation of its sale soon thereafter became for the first time possessed and interested therein.

The answer sworn to by both defendants, as required by the bill, denies this allegation and expressly puts in issue that this matter was discovered for the first time after the hearing, or by the exercise of reasonable diligence could not have been discovered before then, and the parties went to trial on this issue.

The bill further alleges that the foreclosure proceedings, judicial sales, receiverships and transfers of the said several lines of road were had in the Circuit Court of the United States for the Northern District of Florida, where all the papers relating thereto were kept, and that before filing the original bill the, court house building where such records were kept, together with such records, was destroyed by fire, but this is not alleged to be a newly discovered fact for the first time after the original hearing in the case.

In our opinion it is not shown that appellee by the exercise of reasonáble diligence could not have discovered for the first time the alleged'new matter before the original hearing In this case,and that to sustain the decree rendered onthis jioint would violate the rules laid down by all the courts on the subject. Some decisions reject the evidence of new witnesses entirely, but where such evidence is accepted, the authorities hold that it should be done with great caution, and only when it is of such a nature as to amount to decisive proof.

This is necessary to guard against an improvident reopening of matters already settled in a due course of investigation and to avoid the oppression of protracted litigation. That Edward J. Reed was a purchaser of the line of road from Jacksonville to' Chattahoochee at judicial sale was known to appellee when the original bill was filed as this fact is stated therein, and the importance of ascertaining when this purchase was made should have been known, if it was not.

Phillip Walter was clerk of the United States Court for the Northern District of Florida and continued as such until after the filing of the original bill. His office was in this State and accessible to appellee and its agents. It is shown that this clerk was master in the foreclosure proceedings resulting in. a sale of the property acquired by Reed and was familiar with all the facts in reference to the foreclosure sales of the line of road in question.

In fact, this clerk had in his possession after the destruction of the records by fire, and even at the time he testified, in the case, a copy of the foreclosure proceedings, and could have imparted to appellee, or its agents, correct information as to all matters alleged to be newly discovered. There is an entire absence of showing- that any inquiry was made by appellee or its agents of this clerk for information in reference to the dates and facts connected with the sales of the, road, and no reason is assigned why this was not done.

When it becomes necessary to rely upon important facts established in judicial proceedings, a resort to offices where such proceedings were had for information is demanded by ordinary business, prudence, and a failure to so search for information can only be attributable to negligence Dumont v. Des Moines Valley R. R. Co., 131 U. S., Appendix CLX. A knowledge of the destruction of such records by fire would naturally suggest an inquiry oí the custodian before destruction whether they had been reestablished, or what information he could inmpart of their contents.

If it had been shown that a resort was had to the clerk and he misled the parties in reference to contents of records, and on account of their destruction by fire, no means were accessible to correct the mistake, a different case might exist, but no showing of this kind is attempted.

It does not appear that appellee made any search in any office where information could have been obtained in reference to the matters alleged to have been newly discovered, and no effort was made, so far as the testimony, shows, to communicate with Reed, the alleged purcháser of the road, in reference to the important fact of when he became purchaser. It also appears that the original bill was signed by the corporation by its vice-president, who also signed the bill as counsel. The testimony shows that the vice-president was counsel for the receivers of the road from Lake City to Chattahoochee from 1879 to 1882.

One of the receivers, it appears, died before the bill was filed and the other had removed to North Carolina, but it does not appear that the one in North Carolina had been written to, or in any way communicated with, in reference to the facts connected with Reed’s purchase. The receivers, it also appears, acted as masters in the sale of the road.

Counsel insist that knowledge of an attorney acquired before he becomes employed in connection with litigation is no notice to the client who subsequently employs him, and that Vice-President Henderson’s information acquired as attorney for the receivers can not be imputed to appellee. The question involved in this case is not the tracing of knowledge to appellee, but the use of reasonable diligence by it in obtaining evidence in the case. As stated by Lord Eldon the question is “not what the plaintiff knew, but what, using reasonable diligence he might have known.” Young v. Keighly, 16 Vesey, Jr. 348.

The petition for leave to file the bill of review and the bill filed were signed by the company by its president and they were also sworn to by him. The only testimony introduced to sustain the bill of review in reference to the exercise of diligence in discovering the alleged new matter was that of President Duval, and his testimony entirely fails to show that the vice-president and counsel of the company used any diligence whatever in trying to obtain the supposed new matter, and the latter has nothing whatever to say on the subject. No acts of diligence are attempted to be shown by any agent of the company.

We have carefully examined the evidence, and without further special reference to it, state our conclusion that it fails to show that the new matter alleged was not known or could not by the use, of reasonable dilig-ence have been known to appellee or its agents, in time for use before the hearing of the cause. In the absence of such showing it is impossible to sustain the decree without going contrary to well-settled rules of law on the subject. It therefore becomes unnecessary to examine further whether the new matter did exist, or its character and effect.

The decree of the court enjoining the, sale for the taxes assessed for the years 1879, 1880 and 1881 on the line of appellee's road from Jacksonville, to Chattahoochee and branches is reversed, and the bill of review is dismissed with costs against appellee. Judgment will accordingly be entered in this court dismissing the bill.