The following opinion was filed January 12, 1886:
Cassoday, J.All agree that in December, 1876, Wakefield and Henry Ketehum met, negotiated, and consummated an agreement to trade or exchange real estate. All agree that the witnesses Jackson and Trow were present when the agreement was consummated and the writings drawn. All agree that by the terms of the agreement Ketehum was to let Wakefield have his interest in certain mill property and pine lands at and near Merrillan, and receive in payment therefor Wakefield’s interest in the Omro mill property, with the Breed mortgage of $5,000 upon it, and for the balance Wakefield’s several notes aggregating $13,500.
The controverted question is whether it was agreed that Ketelmm should assume and pay the Breed mortgage, or merely take the property, or the avails of it, subject to the *91mortgage. This question does not so much concern Breed as it does Wakefield, and possibly, Stillman and Horace H. and Martin Rich, for Breed's judgment for deficiency is against all of them. ' The real controversy is whether Ketehum or Wakefield is primarily liable for the payment of the mortgage debt. Wakefield and Jackson testified, in effect, that in the trade Ketehum was to take the Omro mill property at a valuation of $12,500, less the $5,000 mortgage upon it — that is, at $7,500; and that Ketehum agreed to assume and pay that mortgage. The statement in Trow’s affidavit agrees with this, in effect, except that he did not hear him 'agree to fay the mortgage, and denies having so told Mariner. Trow states the trade in detail; and in addition said, in effect, that Wakefield took the property he received from Ketehum at a valuation of $21,000, and gave him therefor the Omro' mill, as stated, at $7,500, and his notes for $18,500. Neither the plaintiff, nor any of his newly discovered witnesses, deny such valuations; but each asserts, in effect, that Ketehum did not agree to assume or pay the mortgage; and that Wakefield agreed to give Ketehum for the property received of him $13,500 and what could be realized out of a sale of the Omro mill over and above the mortgage upon it; and that Wakefield agreed to sell the mill for Ketehum, and claimed he had received an offer for it. The intimation is that Wakefield was to retain the title, and Ketehum swore that he never received any deed from him.
If the Omro mill property was of the value of $12,500 in December, 1876, it is a little singular that it did not bring inore at sheriff’s sale in January, 1879, or why there should be such a large deficiency on the sale. Whether from some cause the property had greatly depreciated in value, or it so happened that there was no competition at the sale, does not appear. Nor is it material, since the valuation is of no importance, except in so far as the valuation put upon it at *92tbe time of tbe trade may raise an inference for or against tbe respective claims of tbe parties. It is to be regretted that tbe question thus controverted was never in fact fully tried upon both sides in open court. There is a natural feeling on tbe part of all that whoever claims, in-good faith, to have a defense to an alleged cause of action, should have tbe privilege of establishing it in court if be can. Fair play seems to demand not only an opportunity of having a trial, but a full and fair trial. It is tbe old maxim that every one is entitled to bis day in court. But “ bis day in court ” does not mean any day during a series of years. It simply means the day on which tbe cause is reached for trial in pursuance of the forms and methods prescribed by law. There must necessarily be some end to every litigation. To secure this, there must be more or less stringency in requiring parties to be on hand with their witnesses when the cause is reached for trial in its order.
But it is urged that the failure to be present and ready for trial at the time appointed, and the failure to discover the requisite number of witnesses to insure success at such trial, were excusable by reason of a series of mishaps detailed. The availability of such excuses must necessarily be considered. Upon Mr. Ketchum's version of the transaction, several questions are suggested. If the Omro mill property was regarded at the time of the trade of the value stated, or of any substantial value over and above the mortgage, then why would not Ketahumhs self-interest induce him to exact a conveyance from Wakefield? Wakefield testified that the deed was not made at the time of the writings at Grand Rapids for want of papers showing a description of the'land, but that it was executed soon after, and sent by mail to Ketchiom, and that he thinks it contained a clause making him agree to assume and pay the mortgage; and that Ketehum subsequently told him he had received the deed. If Ketclmm never received it, then it is *93a little singular that he never asked for it, nor spoke of it thereafter, nor insisted that Wakefield should sell the land, nor made any inquiry of him respecting the sale of the land. If, at the time of the trade, the Omro mill property was regarded as of the value stated, or any substantial value over and above the mortgage, then what possible objection could Ketchum have had at the time to assuming and agreeing to pay the mortgage, since he would necessarily be obliged to do it, or lose all the interest he had in the property? If, at the time of the trade, it was understood that Wakefield should retain the title of the Omro mill, and Ketchum, never received any deed, and was never in possession of the property, as claimed, then it is very singular how Breed, who was not a party to the transaction, came to make him a defendant in the foreclosure suit, and especially his wife. After Ketchum was made a defendant in the action of foreclosure, and his demurrer to the complaint therein struck out on the ground of being frivolous, why did he not answer upon the merits the charge of his alleged liability for deficiency prior to the rendition of the judgment of foreclosure and sale, October 29, 1817, or disclaim any title to the land ?
No excuse whatever is attempted for such failure to answer such charge of liability upon the merits before such judgment. That judgment fixed his liability for deficiency. The sale was not made until in January, 1879. After the sale and the amount of the deficiency had been ascertained, Ketchum moved to set aside and vacate such judgment for deficiency as against him. The court permitted him to answer and have the privilege of a trial thereon, but let the judgment stand. 51 Wis. 165. The issue made by that answer and the complaint in the foreclosure action was tried at Oshkosh, in the absence of Ketchum, in the forenoon of February 12,1880. On that trial the court found against Ketchum, and of course refused to open or set aside the *94personal judgment for deficiency previously rendered against him and others. Notwithstanding Ketclmm and his witness Trow reached Oshkosh at 2 P. M. of the same day, yet no effort whatever was made to reopen such issue for retrial, nor to allow Ketchum and Trow to be sworn and examined therein. If Ketclmm Avanted a new trial by reason of his failure to get there with Trow in time to participate in the trial, he should have applied for it at. once while the plaintiff’s attorney and witnesses were still present, and his failure to do so at the time was such a want of diligence as to bar any subsequent application upon the same ground. Earl of Portsmouth v. Effingham, 1 Ves. Sr. 435. So far as this bill of review is concerned, therefore, the case must be treated the same as though Ketchum and Trow had been sworn and testified on the trial in effect as stated in the bill. Ibid. So the failure to continue the cause for the absence of Fortune cannot be considered on this demurrer, as it does not appear that any effort has since been made to ascertain his address or secure his testimony. Nor does it appear that he was present during the trade, nor that he would testify to anything .material to the issue, much' less that he is a newly discovered witness, or can gNe any newly discovered evidence. Ibid. If the “ new matter ” or “ neAv proof ” is such that it could have been used at the time when the hearing was had or the decree passed, then it is not available upon, a bill of review. Ibid.; Norris v. Le Neve, 3 Atk. 35; Patterson v. Slaughter, 1 Amb. 292; Young v. Keighly, 16 Ves. Jr. 348; Blake v. Foster, 2 Ball & B. 457.
There is no attempt in the bill to account for Ketchums failure to remember that his son, Snell, and Beatty were present during the negotiations of the trade. If he could not remember all who Avere there, then why did he fail, prior to March 14, 1882, to make any inquiry of his son, or of Trow and Jackson, whom he knew to have been pres*95ent? Just how he came to discover on that day or about that time that they were all present during the trade, which occurred more than five years previously, does not appear. It will be observed that the transaction in question was wholly between Wakefield and Ketchum personally. In the trade between them there was no intervening agencjr nor middle-men. The alleged agreement in controversy was either made by Ketchum personally with Wakefield or not at all. Whether it was made or not was necessarily known to Ketchum at the time of the trade, in December, 18U3. Being known to him at the time, it could not possibly be discovered by him thereafter. There is ,no claim that the exact terms of the trade were ever forgotten by Ketchum. In his answer, made in January, 1819, he denied having made the alleged agreement. He necessarily knew the only fact which he desired to prove during the whole pendency of the foreclosure action, and subsequently, when he put in his answer, and when the issue thereon was tried and decided against him, and ever since.
Assuming Ketchum?s version of the transaction to be correct, then he knew during all that time that he could disprove such alleged agreement by himself, and also by Trow, Jackson, and Wakefield, if they would tell the truth. The claim is that he “ did not know until on or about ” March 14, 1882, that he could also disprove the alleged agreement by his son, Snell, and Beatty; that he then first learned they would so testify; that prior to that time 'he did not know that either of them were present when the trade was made, or heard any of the conversation. If this is true, and they were in fact present, then Ketchum must have known it at the time, and forgotten it thereafter, although he says nothing about having forgotten the fact of their presence, but simply insists that he ’never knew it. The only discovery which Ketchum could make March 14, 1882, was either that the, three persons named wére present at the time of *96making the trade in such a way or so concealed as to be unknown to him at the time, or else that he knew it at the time, and had forgotten it until afterwards, when reminded of it. In other words, the claim is, not that he discovered or was reminded of any new fact, March 14, 1882, but that he then discovered or was reminded of three additional witnesses, who would each testify to a fact well known to himself all the time, and which, during all the time, would have been testified to by himself and three other persons whom he knew to. have been present when the trade was made, if .they would have told the truth.
Is the claim such as to require a court of equity, under all the facts and circumstances disclosed, to entertain this bill of review, especially after so long delay and so many laches ? Almost every thorough discussion of the question goes back to and substantially follows the first of the celebrated 101 ordinances in chancery made by the great philosophical Lord Chancellor. 2 Works Ld. Bac. 479. See, also, Story, Eq. Pl. § 404; 2 Barb. Ch. Pr. 91; Brewer v. Bowman, 20 Am. Dec. 160. That declared, in effect, that “ no bill of review shall be admitted, except it contain either error of law ... or some new matter which hath arisen in time after the decree, and not any new proof which might have been used when the decree was made. Nevertheless, upon new proof that is eome to 'light a,fter the decree made and eoukl not possibly have been used at the time when the decree passed, a bill of review may be grounded by the special license of the court, and not otherwise.” Here the bill was filed by special license of the court. There is-no claim of any error of law upon the face of the record. It cannot seriously be claimed that any “ new matter ” had risen or been discovered prior to the filing of the bill and since the decree in the foreclosure suit fixing the liability of Ketchwm. There certainly was nothing more than the discovery or remembrance of some “ new proof ” or evidence *97of a fact well known to Eetohnm from the first, and “■ which might have been used when the decree was made,” had Ketchum, prior to that time, put in his answer and remembered the fact of the presence of the three witnesses named when the transaction occurred. To authorize this bill of review, within the meaning of the last clause of the portion of the ordinance quoted, it was requisite that it should appear therein that “ new proof ” had “ come to light after the decree ” was made which “ could not possibly have been used at the time when the decree passed.”
Has the plaintiff brought his case within this rule? The proposed new evidence was relevant to the issue made. In some of the very early/cases it was held, in effect, that a bill of review could never be maintained upon “ new proof ” of a matter of fact particularly put in issue before the former hearing. Chambers v. Greenhill, 2 Rep. in Ch. 66; Anonymous, 1 Freem. Ch. 31, case 35. Rut subsequently it was held by Lord Chancellor Talbot, in effect, that a bill of review might be maintained “ upon some matter, as a release, receipt, etc., proved to have been discovered since the decree. Taylor v. Sharp, 3 P. "Wms. 371. This was put upon the ground that “ unless this relief were confined to such neio matter, it might be made use of as a method for a vexatious person to be oppressive to the other side, and for the cause never to be at rest.” Ibid. The rule that a bill of review may be grounded upon “ new proof ” consisting of documentary evidence which was discovered after the decree, was afterwards sanctioned by numerous decisions in England and this country. Standish v. Radley, 2 Atk. Ch. 177; Earl of Portsmouth v. Effingham, 1 Ves. Sr. 430; Att’y Gen. v. Turner, 2 Amb. 587; Massie's Heirs v. Graham’s Adm’rs, 3 McLean, 46; Bradshaw v. Garrett, 1 Porter, 54; Ex parte Vandersmissen, 5 Rich. Eq. 519; S. C. 60 Am. Dec. 102. Such testimony is not merely cumulative, but may be regarded as new evidence of an independent *98fact, although bearing directly upon the former issue. Wilson v. Plank, 41 Wis. 94. But even the discovery of such documentary evidence has been held insufficient whenever there has been any want of diligence, or the allowance of the bill might work injustice, or the new evidence would be ineffectual. Norris v. Le Neve, 3 Atk. 26; Wilson v. Webb, 2 Cox, Ch. 3; Blake v. Foster, 2 Ball & B. 457; Massie’s Heirs v. Graham’s Adm’rs, supra; Bradshaw v. Garrett, supra; Jones v. Pilcher’s Devisees, 6 Munf. 425. Even the loss or mislaying of such documentary evidence has been held insufficient ground upon which to maintain a bill of review. Jones v. Pilcher’s Devisees, supra.
The liberal rule as to granting bills of review, on the ground of newly discovered documentary evidence, does not extend to newly discovered testimony resting wholly in parol. Chambers v. Greenhill, supra; Young v. Keighly, 16 Ves. Jr. 348; Livingston v. Hubbs, 3 Johns. Ch. 124; Taylor v. Sharp, supra; Dexter v. Arnold, 5 Mason, 303; Jenkins v. Eldredge, 3 Story, 310 et seg.; Southard v. Russell, 16 How. 569, 570. Where the newly discovered evidence would have been relevant and material to the former issue, and rests wholly in and is dependent entirely upon the memory of witnesses living at the time of the hearing, and whose testimony might then have been obtained had their knowledge of the facts been then known to the parties, it will not be available upon bill of review where, as here, it is merely in contradiction or impeachment of evidence that was given, or merely cumulative to evidence which was, or with ordinary diligence might have been, given upon such hearing. Chambers v. Greenhill, supra; Taylor v. Sharp, supra; Young v. Keighly, supra; Norris v. Le Neve, supra; Livingston v. Hubbs, supra; Jenkins v. Eldredge, supra; Respass v. McClanahan, Hardin, 342; Brewer v. Bowman, 3 J. J. Marsh. 492; S. C. 20 Am. Dec. 158; Vaughn v. Hann, 6 B. Mon. 338; Tharp v. Cotton's *99Ex'rs, 7 B. Mon. 636; Southard, v. Russell, supra; Bradshaw v. Garrett, supra; Caller v. Shields, 2 Stew. & P. 417; Love v. Blewit, 1 Dev. & B. Eq. 108; Warren v. Hope, 6 Greenl. 479; Iler v. Routh's Heirs, 3 How. (Miss.) 293; Foy v. Foy, 25 Miss. 212; Randolph's Ex'r v. Randolph's Ex'rs, 1 Hen. & M. 180; Stevens v. Hey, 15 Ohio, 313. Besides, it is a rule universally recognized that “new proof,” to be available on bill of review, must be such as could not have been discovered before the hearing by the exercise of reasonable diligence. Young v. Keighly, supra; Norris v. Le Neve, supra; Livingston v. Hubbs, supra; Blake v. Foster, supra; Dexter v. Arnold, 5 Mason, 312; Respass v. McClanahan, supra; Caller v. Shields, supra; Iler v. Routh's Heirs, supra; Stevens v. Hey, supra; Jenkins v. Prewitt, 7 Blackf. 329; Barnes v. Dewey, 58 Ind. 418; Green's Appeal, 59 Pa. St. 235; Simpson v. Watts, 6 Rich. Eq. 364; S. C. 62 Am. Dec. 392; Brainard v. Morse, 47 Vt. 320; Todd v. Chipman, 62 Me. 189. “The question always is,” said Lord EldoN, “ not what the plaintiff knew, but what, using reasonable diligence, he might have known.” 16 Ves. Jr. 353. This language has been frequently sanctioned by eminent judges. 2 Ball. & B. 461; 3 Story, 315. And this rule, according to Lord HaRdwioKE, applies, not only to the party, but also to his attorneys, solicitors, and agents. Norris v. Le Neve, 3 Atk. 35; Gould v. Tancred, 2 Atk. 533.
The want of recollection as to all who were present during the trade, when it degenerated into a want of reasonable diligence in refreshing the memory -respecting the same, was such as to justify the court in refusing a review. The facts alleged in the bill fail to bring the case within the rules established in chancery. Besides, the granting of relief by bill of review is not a matter of strict right, but rests in the sound discretion of the court. Wilson v. Webb, supra; Green's Appeal, supra: Dexter v. Arnold, 5 Mason, 315. We certainly cannot say, upon the case made in the *100bill, that'there was any abuse of discretion. We have not taken into account the attempt to retry the cause on motion (51 Wis. 164), nor afterwards by original bill in equity to restrain the collection of the judgment. Ketchum v. Breed, 51 Wis. 131. The view we have taken of the case renders it unnecessary to determine whether the old remedy by bill of review has been superseded and wholly abrogated by sec. 2832, E. S., as urged by counsel, or not; or whether there is any defect of parties. Cases may well be conceived where it would be the only possible remedy.
By the Gourt.— The order of the circuit courtis affirmed.
Upon a motion for a rehearing there was a brief for the appellant, signed by G. W. Gate, attorney, and B. P. Smith and M. B. Patehin, of counsel, and a brief for the respondent by E. Mariner.
The motion was denied May 15, 1886.