Technically the bill is one to correct errors of law apparent on the face of the decree. This is indicated by the fact that it was filed without leave first obtained.1 3 Ency. of Pleading and Practice, 575; Storey's [sic] Equity Pleading, secs. 404-411; 10 R. C. L. secs. 360366. It is elementary that errors in a decree resulting from mistaken judgment going only to the correctness of the court's decision (Perry v. Phelips, 17 Ves. Jun. 173 English Reports, Full Reprint, vol. 34 (p. 67); Vyverberg v. Vyverberg, 310 Ill. 599; Regner v. Hoover, 318 Ill. 169; Hoffman v. Knox, 50 Fed. 484) or errors resulting from a failure to present a defense existing at the time a judgment or decree is entered (Harrigan v. County of Peoria, 262 Ill. 36; Stasel v. American Home Security Corp., 279 Ill. App. 172) may not be made the basis upon which equitable relief by way of a bill of review may be granted. The bill of review cannot be made to perform the function of an appeal or writ of error (Regner v. Hoover, 318 Ill. 169: Hoffman v. Knox, 50 Fed. 484). The courts are reluctant to subject decrees to review by this method, and the cases are comparatively few in which relief may thus be obtained.

The petition of the bank to be substituted as plaintiff clearly set up the facts upon which it was based. Plaintiff had notice of the presentation of the petition and an order was entered that all defendants within a time certain should plead, answer, except or demur. The hearing was set for a specific day and at 9:30 a. m. Plaintiff allowed the petition to be taken as confessed. The court had jurisdiction to decide who was the proper party plaintiff. It decided and entered an order accordingly. Two days thereafter plaintiff Gray made a motion to set the decree aside and for leave to answer the petition. The motion was supported by affidavit in which the reasons therefor were fully set up. The court decided that the affidavit was insufficient and the motion was denied. If the court erred in its judgment in these respects or in the exercise of its discretion, the error might have been corrected upon appeal which, under our present statute, is a matter of right. Defendant did not avail himself of this remedy.2. . . an examination of the bill and the authorities cited by both parties leads us to the conclusion that the alleged errors pointed out by the bill are not such errors as may be corrected by a bill of review. The contention of plaintiff is that the alleged consolidation of the First Union Trust & Savings Bank, an Illinois corporation, with the First National Bank of Chicago, a corporation. created under the laws of the United States, is illegal and void because it was unauthorized by any Illinois statute. As plaintiff in his ingenious brief says: "This is the prime, the first, the outstanding and

1 A bill of review on the ground of newly-discovered evidence can be filed only by leave of court. See Hagerott v. Adams, 61 F. (2d) 35 (C. C. A. 8th, 1932) [certiorari denied sub nom. Adams v. Hagerott, 288 U. S. 599 (1933)]. 2 A discussion of whether Gray had been prejudiced by the prior decree is omitted.

necessarily controlling issue in this case, this issue as to the power of First Union Trust & Savings Bank under the Illinois statute, that bank's only source of power. In fact it is the only issue in this Honorable Court on the merits of this case." If it is conceded that this question is debatable it would not follow that the alleged error was one that might be corrected by a pure bill of review, and this for the reason that the alleged error is not "apparent." The bill does not show any unquestioned violation of the provisions of the statute. It does not point out any decision of a court by which the proposition of law for which it contends is unquestionably established. Manifestly, a bill of review is not designed to correct such supposed errors which, under our Civil Practice Act, may be reviewed by appeal. Storey [sic], Equity Pleadings, sec. 405, illustrates the kind of supposed errors which may be reached by bill of review, such as if a decree is against the statute law in directing a legacy belonging to a child who had died an infant intestate without wife or children to be distributed to his mother, brothers and sisters, where by the statute it was.vested entirely in the father, or where an absolute decree was made against a person who upon the face of it appeared to have been an infant. As Lord Chancellor Eldon said in Perry v. Phelips, 17 Ves. Jun. 173, 177: "There is a great distinction between error in the Decree and error apparent. The latter description does not apply to a merely erroneous judgment; and this is a point of essential importance; as, if I am to hear this cause upon the ground that the judgment is wrong, though there is no error apparent, the consequence is, that in every instance a Bill of Review may be filed; and the question, whether the cause is well decided, will be argued in that shape: not, whether the Decree is right or wrong on the face of it. The cases of error apparent, found in the books, are of this sort; an infant not having a day to show cause, etc.; not merely an erroneous judgment."

The supposed errors alleged in the bill are not of this character. Plaintiff cites authorities such as Gunggoll v. Outer Drive Athletic Club, 349 Ill. 406, and California Bank v. Kennedy, 167 U. S. 362, 367, to the effect that consolidation of corporations without statutory authority is void, and argues that Casey v. Galli, 94 U. S. 673 has been overruled by Hopkins v. Cleary, 296 U. S. 315, and by the same reasoning argues that the opinion of the Attorney General of Illinois (see Opinions, 1927, p. 316) to the effect that this consolidation was legal should be disregarded. The question decided in Hopkins v. Cleary did not arise out of the consolidation of a State bank with a national corporation. McCulloch v. Maryland, 4 Wheat. 316, has never been overruled. Even if upon a consideration of all the cases we were disposed to agree with the validity of the argument presented by attorney for the plaintiff it would by no means follow that the alleged error was "apparent" within the rule limiting errors which may be corrected by a bill of review. If the supposed error is debatable it is not "apparent." Much less would we be able to hold

these errors to be "apparent" in view of the fact that pending this appeal the third division of this court, in the case of First National Bank of Chicago v. Lindberg, 293 Ill. App. 474, on the appeal of Edward F. O'Brien (a case where the Appellate Court was unrestricted by rules of law applicable to bills of review and where the appellant was represented by the same counsel as appear for plaintiff here) held in a carefully considered opinion by Presiding Justice Hebel that the defendant in a foreclosure suit was without standing to question the right of the consolidated plaintiff's successor trustee to maintain its bill to foreclose; the exclusive right to raise that question being in the State. We agree with the conclusion reached in that opinion. It is unnecessary to repeat here what was said there. For these reasons the decree is affirmed.

O'CONNOR, P. J., and McSURELY, J., concur.1

Affirmed.

1 As to bills of review generally, see Story, Equity Pleadings (10th ed. 1892) §§ 403-425. Cf. p. 475, n. 3, supra.

CHAPTER XIV

ENFORCEMENT OF DECREES

HARRISON, THE ACCOMPLISH'D PRACTISER IN THE HIGH COURT OF CHANCERY (8th ed. 1796) vol. 1, 442-444.

THE WRIT of execution is a process of this court, reciting an order or decree of the court, (be the same final or interlocutory,) or the substance thereof, or of some part thereof, and requiring an obedience to so much of the order or decree as is recited, and concerns the party to perform. . . .

And if, upon the regular service of this writ, the party obey not the decree, then upon affidavit of the due service of this writ, and that he hath not performed the decree, being filed in the proper office the ordinary process of contempt, attachment, proclamation, commission of rebellion, &c. may of course be made out against him; and if a party in contempt for not obeying a decree be taken by the serjeant at arms, he is to be committed to the Fleet, there to remain till he perform the decree, or so much thereof as is presently to be performed, and give good security by recognizance, with sureties, for the performance of what is to be done afterwards, if any thing remain to be performed, and also pay the other his costs in prosecuting the contempt and if he continue any considerable time in custody without paying obedience to the decree, the court will set him a day to perform the decree, which he upon notice still refusing to do, the plaintiff may, by a motion to be made for that purpose, cause him to be brought into court by an habeas corpus; and upon his still persevering in his obstinancy, the court will take such further course as shall seem fit. . . .

In case of a decree for money, if the defendant is not taken, but stands all process of contempts upon the decree, and the serjeant at arms certifies that he is not to be found, or being taken by him is rescued, a sequestration will be granted; and that as well where a decree is for the payment of a personal duty, as money upon contracts, debt, account, &c. as where it is for rent charges, &c. issuing out of the land.

If the decree is for the possession of land, and the party has been served with the writ of execution of the decree, and also with an attachment, the court usually grants an injunction to be served upon him to deliver up possession; and if this be disobeyed, after it is served, upon affidavit thereof, the court will grant a writ of assistance, directed to the sheriff of the county where the lands lie, commanding him to be aiding and assisting to put the party, in whose favour the decree was made, in possession.

• 724

COMMONWEALTH ex rel. LIEBERUM v. LEWIS.

SUPREME COURT, PENNSYLVANIA.

253 Pennsylvania State 175.

HABEAS CORPUS, original jurisdiction.

1916.

FRAZER, J. A bill in equity was filed in 1912 by various persons against Christian Lieberum, the relator, asking for an injunction to restrain him from continuing to obstruct a certain right of way by maintaining thereon a building which he erected a number of years previous to the instituting of the proceedings. A decree was entered against Lieberum ordering him to remove the building on or before a certain time, and to replace the way in suitable condition for travel. This decree was affirmed on appeal to the Superior Court, in Schmidt v. Lieberum, 54 Pa. Superior Ct. 500. The relator refused to comply, whereupon an attachment was issued, and an order made adjudging him guilty of contempt of court, for which he was committed to the county jail until such time as he should purge himself of the contempt. Three writs of habeas corpus were subsequently issued by the lower court and each of them on hearing was dismissed, the prisoner still persisting in his refusal to obey the decree, without offering excuse for his conduct, or showing reason why he should not be punished for his open defiance. On October 28, 1915, a petition was presented to this court, and a writ issued to the warden of the jail requiring him to produce the relator before us, and, on October 29, 1915, a decree was entered directing his release from confinement on giving bail to await the further order of the court.

The first contention on part of relator is that the commitment to the county jail was insufficient, in that it failed to show the nature of the contempt for which he was committed. The order of the court recited in detail the entry of the original decree directing relator to remove his house; the fact that this decree was sustained by the Superior Court; the failure of relator to comply with its terms; the issuing and service of a rule of attachment; the fact that relator duly appeared before the court and refused in open court to comply with the decree; and the resulting order committing him for contempt. There can be no doubt that the decree in itself was sufficient to show the nature of the offense which formed the basis of the commitment.1 . .

Relator further contends an attachment for contempt should not be sustained for the reason that other remedies are available, and further that the refusal to obey the order of the court is not a crimi

1 The transcript of the proceedings which was presented to the warden of the prison was clerically defective, but the court decided that this did not make the detention illegal.