"That the supreme court decided, in effect, that the state did not have the power to follow this property for the taxes of 1879, 1880, and 1881 by assessment in 1885, if it had ceased to be in the possession and ownership of the persons to whom it belonged during the time for which such assessment was made, into the hands of innocent purchasers for value, and reached its conclusion that the railroad from Jacksonville to Chattahoochee river, with branches to Monticello and St. Marks, was owned and operated by Edward J. Reed and associates from September, 1879, to February, 1882, by a wholly mistaken view of the facts not in issue in the case or submitted, and upon an interpretation of the statements of the bill that is entirely at variance with the facts as they existed, and the understanding and purport of such statements at the hearing below. That while said original bill, on pages 14 and 15, does allege that Edward J. Reed and associates purchased said line of road at foreclosure sale September 25, 1879, and conveyed the same February 28, 1882, to a company organized and known as the Florida Central & Western Railroad Company, said bill is silent in its allegations as to the possession and ownership of said line of railroad during the time intervening between September 25, 1879, and February 28, 1882. And petitioner shows that since the said opinion was rendered, with the aid of its counsel, some old letters and portions of accounts have been found, which have led to the discovery of what was the actual status of the possession and ownership of said property during said interval, which before then was not known by your petitioner, and which could not be found by it, although it exercised great diligence in the search for the actual facts to set them forth in its bill; and your petitioner now alleges, as evidence discovered since the rendition of said opinion by said supreme court, that in fact and in truth during all these years, covering the whole of the period for which these taxes are assessed, and for the entire time between September, 1879, and before, and until February 28, 1882, a company known as the

Company owned that part of the aforesaid line of railroad between Lake City and Chattahoochee, with branches to St. Marks and Monticello, and it was possessed, used, and operated by receivers of United States court, viz. Sherman Conant and A. B. Hawkins, who retained the possession of said road, and received and retained the tolls and revenues thereof, from September, 1879, the date of the sale alleged in the original bill, until after the said sale was confirmed by said court. That on the 10th day of February, A. D. 1882, the said H. R. Jackson, Chas. H. Symonton, and Adolph Engler, purchasers at the sale aforesaid, conveyed the said line of railroad, for value, to said Edward J. Reed, before which last-named date Reed and his associates were not owners of and were not possessed of said property, nor in receipt of any of its incomes, or in any way interested therein. That the portion of said road between Lake City and Jacksonville was owned and possessed and enjoyed by the Florida Central Railroad Company, its owners, for many years, until the judicial sale thereof on the 6th day of January, 1882, when it was purchased by Edward J. Reed, who for the first time became possessed of the said line of railroad after the confirmation of said sale, occurring thereafter, within less than ten days from the date of sale aforesaid.

"That said foreclosure sales and receiverships were had in and under the authority of the circuit court of United States for the Northern district of Florida, and all the records and papers of said court in said causes were destroyed by fire, as hereinbefore said, before the preparation and filing of petitioner's said original bill. That Sherman Conant, one of the aforesaid receivers, had died prior to that time, and A. B. Hawkins, the other receiver, had removed from the state of Florida to the state of North Carolina. That your petitioner incurred great expense and labor in the preparation of its said original bill, occasioned by the destruction and loss of the court records aforesaid, and the great time that has elapsed since the occurrence of many of the transactions therein narrated, and exercised all due and reasonable diligence to ascertain, discover, and set forth every fact material to its case. That the aforesaid new matter was not known to your petitioner, and by the exercise of due and reasonable diligence could not be discovered and produced at the hearing upon said original bill; and your petitioner again avers that it did exercise extraordinary diligence, and did avail itself of all known sources of information, in its efforts to obtain and set forth in its bill the actual facts of each and every the events, incidents, changes, sales, and all other proceedings material to the full advisement of the court in and about the fair determination of the questions involved in said controversy, and

that it omitted nothing therefrom that was available to it in the exercise of such diligence.

"And your petitioner most respectfully submits and suggests that, while there was no change in the (legal) ownership and possession of the several lines of railroad acquired by the Florida Railway & Navigation Company from the time of its organization till the assessments were made, still it is charged in petitioner's bill and admitted by defendants' answer that after said property was acquired by the Florida Railway & Navigation Company, and before it was assessed for taxes for the years A. D. 1879, 1880, and 1881, and, to wit, on July 1, 1884, and before the passage of chapter 3558, Laws Fla., under which such assessment was made, said company issued its bonds to the amount of $10,000,000, and that $5,000,000 of said bonds were actually disposed of to holders for value, secured by mortgage or deed of trust upon all the said lines of railroad property, and also that, at the time of the formation and consolidation of the original and constituent railroad companies mentioned in said bill into the said Florida Railway & Navigation Company, each and every of said several constituent companies had outstanding and unpaid large amounts of bonds by them severally theretofore issued, and secured by mortgage or deeds of trust upon said several lines of railroad, respectively. That upon the failure of the said Florida Railway & Navigation Company to pay a certain common-law judgment rendered against it in favor of W. B. Cutting for moneys borrowed, and for defaults in the payment of the interest on the underlying bonds aforesaid of the said several constituent companies, the lines of railroad of said Florida Railway & Navigation Company were, upon bills filed by said Cutting and by the several trust companies, representing the holders of said bonds, in the circuit court of the United States for the Northern district of Florida, for the foreclosure of said liens, sold under the decree and authority of said court in the year A. D. 1889, severally under their first liens, and as a whole under the lien of the mortgage created by the Florida Railway & Navigation Company as aforesaid, and that W. B. Cutting, as agent, bought the said property and conveyed to your petitioner's company, which he and his associates had organized for that purpose, and that petitioner is no otherwise whatever the successor of said Florida Railway & Navigation Company, and it holds its property by virtue of liens created long prior to the assessment made under chapter 3558, Laws Fla.

"And your petitioner respectfully submits that under undisputed facts your petitioner occupies the legal position and attitude of a bona fide purchaser for value of the whole of said property at the date of the execution of said several mortgages or deeds of trust, and that at said several dates the state had

made no assessments and had taken no steps whatever to collect the said taxes; that no taxing statute had affixed any lien upon said property, and that at the date when said consolidated bond issue was made, under which the system as a whole was sold, the time for the assessment and collection of taxes for the years 1879, 1880, and 1881 had passed; and that chapter 3558, under which the assessment was subsequently made, was not enacted until February 12, 1885. And, having acquired its said property by purchase at the judicial sales aforesaid, your petitioner respectfully submits that it stands in the attitude of a bona fide purchaser of said property for value, as of the dates of the said several liens securing the bond issues aforesaid, and should have been so adjudged by the court, and decreed to hold the same exempt from the payment of the taxes so assessed for the years 1879, 1880, and 1881. And your petitioner suggests and assigns the failure of the court so to decree as error in law apparent upon the face of said decree, for which the same should be reviewed and reversed. Your petitioner further shows that the decree rendered by the judge of the Third judicial circuit on June 19, 1897, as a final decree, is informal and imperfect, and within itself unintelligible, as it can only be read in connection with and by reference to the decree of November 25, 1893; that it was rendered for and against W. D. Bloxham, as comptroller, who was not at that time the comptroller of the state of Florida, and there were no proper parties to said cause at the date of the rendition of said decree.

"Wherefore your petitioner prays that leave be granted it to file a bill of review to review the aforesaid final decree rendered as herein aforesaid, upon the grounds of the newly-discovered evidence aforesaid, and the error in law appearing upon the face of the said decree aforesaid, and that petitioner be permitted, by way of supplement, to make William H. Reynolds, as comptroller of the state of Florida, a party defendant thereto in lieu of the original defendant, W. D. Bloxham, who has ceased to be such comptroller, and for such other and further relief in the premises as the nature of the circumstances of this case may require."

The petition was signed, "The Florida Central and Peninsular Railroad Co., by H. R. Duval, President," and in his affidavit attached thereto it is stated that he had carefully read the petition, and the facts therein set forth, as of petitioner's own knowledge, were true, and those stated upon information derived from others he believed to be true; that the new matter set up in the petition as a basis for filing a bill of review was not known to petitioner at the date of the hearing upon the original bill in the cause, and by the use of reasonable diligence could not have been known or produced at said hearing, and the same had first come to the knowledge of petitioner since said hearing; and that all the

statements therein made as to the time, manner, and circumstances of the discovery of said new matter, and the difficulty attendant upon such discovery, were true, as stated in the petition.

On this petition the circuit judge entered an order making William H. Reynolds, comptroller, a party defendant in place of William D. Bloxham, and that petitioner be allowed to file a bill of review in the cause as prayed for in the petition.

Thereupon a bill of review was filed against W. H. Reynolds, comptroller, and John A. Pearce, sheriff, alleging, in substance, the same as stated in the petition for leave to file it, and including the signing of the bill and an affidavit thereto by H. R. Duval, as president.

Subsequent to the filing of this bill the defendants therein applied to this court for a prohibition against the judge of the Third circuit and the railroad company; and the proceedings thereon are fully stated in the case of State v. White, 40 Fla. 297, 24 South. 160.

On the suggestion for prohibition it appeared that a formal demurrer had been filed to the bill of review, but on the present record there is no demurrer, other than that contained in an answer. Appellants answered the bill of review, and, with other of the allegations, denied that the new matters therein stated were unknown to complainants, or that by the exercise of due and reasonable diligence they could not have discovered them and produced them at the hearing on the original bill. The answer also claims by demurrer that the new matters stated in the bill are immaterial and insufficient to cause a reversal of the decree.

A general replication was filed to the answer, and, after testimony taken, the court entered a final decree, and adjudged that so much of the prayer of the bill as seeks to enjoin defendants from the collection of the taxes. assessed in 1885 for the years 1879, 1880, and 1881 on the line of railroad between Fernandina and Cedar Keys, and Waldo and Ocala, and on the line from Ocala to Wildwood, for the year 1881, be denied, and that the collection of the taxes assessed for the years 1879, 1880, and 1881 on the line of railroad between Jacksonville and River Junction (Chattahoochee), with branches to St. Marks and Monticello, be enjoined. From this decree the present appeal is taken.

William B. Lamar, Atty. Gen., for appellants. T. L. Clarke, for appellee.

MABRY, J. (after stating the facts). The record evidence in this protracted case shows that the appellee, the Florida Central & 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 & Navigation Company, a consolidated railway com28 So.-55

pany, 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, under the organization of the Florida Central & Peninsular Railroad Company, assumed possession of the properties so purchased. The Florida Railway & Navigation Company was formed in February, 1884, by consolidation of the Florida Transit & Peninsular Railroad Company, the Florida Central & Western Railroad Company, the Fernandina & Jacksonville Railroad Company, and the Leesburg & 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 noncompliance 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 guaranty 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 & 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 & 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, p. 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 (Acts 1854, c. 610)

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. Railroad Co., 19 Fla. 231; Railroad Co. v. Palmes, 109 U. S. 244, 3 Sup. Ct. 193, 27 L. Ed. 922.

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 1, 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 successor of the Florida Railway & 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 demand was refused by the circuit court in the first instance, and the decision, to this extent, was affirmed by this court. Bloxham v. Railroad Co., 35 Fla. 625, 17 South. 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. Railroad Co., supra. This contention was rejected by the circuit court, and its ruling was also 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 & Navigation Company, 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 & 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 constituent companies. It was also alleged that the Florida Railway & Navigation Company had acquired its 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 & Navigation Company was formed in February, 1884, by consolidation with other companies, one of which was the Florida Central & Western Railroad Company, extending from Jacksonville to Chattahoochee; and in reference to this line it is averred that under the terms of the statutory mortgage created by chapter 1716, Laws Fla., 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 & 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 consutuent 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 cannot 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 v. Railroad Co., 35 Fla. 625, 17 South. 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 & 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 purchaser at judicial sale in September, 1879, and, in connection with associates, formed the Florida Central & Western Railroad Company, one of the consolidated con

stituents of the Florida Railway & Navigation Company; and on such a state of facts the taxes were declared to be a valid charge on the property specified in the opinion of this court rendered at the January term, 1895. 35 Fla. 625, 17 South. 902. The decision then made on the record presented was final, and left nothing for the circuit court to do, except to enter a 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. 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 bill 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. 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 become 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 inquiry, 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 cannot, 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. Forbes' Adm'r, 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' Adm'r 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 7, 1853. This act, in reference to the right to appeal, is the same as section 1457, Rev. St., and authorizes appeals from any interlocutory order, decision, judgment, or decree of