Where a plaintiff brought an action to review and correct a decree, heretofore made in an old suit in Equity, and not yet performed: Held, upon demurrer, that the proper remedy for the plaintiff was a motion in the original suit, still pending, and not by an independent action in the nature of a bill of review.
READE, J.
The original suit between the parties was heard at Fall Term, 1870, and there was a decree directing the Clerk to reform the account, which had been reported, in certain particulars, and when so reformed it should stand as the decree of the Court. At Spring Term, 1871, and before the decree had been performed, this action was commenced for the purpose of having the decree reviewed and corrected.
The defendants' demurred for cause, that the plaintiffs' remedy was by motion in the original cause then pending.
His Honor was of the opinion that "so far as the parties are concerned, the decree seems to have been performed, as the partnership funds in contest are in the hands of the Clerk of the Court as receiver." If from this we are to understand his Honor's opinion to be that the original suit was not pending, and that no motion could have been made therein, we thing he was mistaken. We are also of the opinion that the plaintiff's remedy is by a motion in that suit. The effect of this decision is to reverse his Honor's ruling and sustain the demurrer. But then we are also of the opinion, that upon the payment of costs by the plaintiff, if the plaintiff had moved, it would have been proper for his Honor to have treated this proceeding as a motion in the original suit.
The cause will be remanded that the parties may proceed as they may be advised. And this opinion will be certified. The plaintiff will pay the costs of this Court, as he made no motion below, to treat his action as a motion in the original suit.
PER CURIAM. Judgment accordingly.