(Dissenting.)
I can not concur in the conclusion reached by the majority of the court in this case. In the, majority opinion it is stated that the question of the propriety or im*460propriety of the order of the court below granting leave to file the bill of review is not passed upon or determined, and yet, according to my view, the reversal of the decree appealed from is planted solely upon the ground that the showing made for leave to review the former decree does not come up to the rule in such cases, that diligence was not shown to have been used in the discovery of the new matter made the groundwork of the application. The merits of the case as involved in the bill of review filed, and in the new proofs adduced in support thereof, aside from the question of diligence, are not considered, but the reversal is based solely upon what, in my view, is purely a preliminary question in all such cases affecting only the right to the necessarily precedent order granting leave to ñle a bill of review, and the effect of the, opinion of the majority is to adjudge that the Circuit Judge erred in granting leave to Me the bill of review because diligence was not shown in the discovery of the new matter set up in the application- therefor. The record before us shows that the application for leave to file the bill of review was by petition to the court below, and that the order granting such leave was made after notice to the opposite party who. appeared by counsel at the hearing of such application. No objection by answer, demurrer or otherwise appears by the record to have been made to the passing of the order granting leave to file the bill of review, but the appellants saw proper apparently to waive any objection to' the granting of such order on the showing made in the application therefor, and in their formal answer to' the bill of review when filed attempt to raise the question of diligence in the discovery of the new matter set up therein. In my view the question of diligence in such cases affects solely *461the question of the right of the party to the pre-requisite order granting leave to Me the bill of review, and, like such order, is necessarily a preliminary question ’that must be adjudicated before the bill of review itself is Med, and it ceases to be a material question in the case after the formal order is made granting leave to Me such bill. The appellants having stood by and permitted the order to be made, granting leave to file this bill of review, without interposing any apparent objection thereto, admitted the right of the appellee to have such review, and waived all defects and shortcomings in the application therefor, including the question of diligence and all other questions upon which the right to such review depended, and it was too late for them afterwards to- reinterjept it into the case in the form of air answer to the bill of review itself. Hodges v. Mullikin, 1 Bland’s Ch. 503. This being true, 1 think that this court is confined in its review to the merits of the case as disclosed in the new matter brought to light by the bill of review. What is that new matter? That the line of road from Jacksonville to Chattahoochee, with branches to Monticello and St. Marks, though sold at judicial sale in September, 1879, to Reed and associates, did riot go into their possession or control as a consummated purchase until 1882; but until the last named date remained in the custody of the court under whose order the sale was made, in the hands and control of such court’s receiver’s, and that the said purchase made at the sale in September, 1879, was not completed by confirmation thereof by the, court making it until 1882, when Reed and his associates became bona ñde puchasers for valuable consideration then paid, without notice of any tax lien upon said line of road for the *462years 1879, 1880 and 1881, and I think that the proofs offered in support of the above new matter fully sustains its truth with no contradiction save the unsupported denials of the answer. Under these circumstances, according to the former decision of this court in the case, 35 Fla. 625, 17 South. Rep. 902, neither the appellee nor the said line of road in its hands, are chargeable with the taxes for said last named years, assessed under an ex post facto statute enacted subsequently to their becoming such purchasers. The great State of Florida can not, in my view, afford to perpetrate such an injustice upon innocent purchasers of property within her borders, for fhe sake even of rigid adherence to, and enforcement of, a technical rule of practice in her courts.