Reeg v. Burnham

Afterwards, at the same term a motion was made for a rehearing, which was denied November 19.

Sherwood, J.

Motion is made in this case for a rehearing upon the following grounds :

1. “And your petitioners further show that said decree is erroneous because it is apparent that your petitioners received no more from Leonard Beeg than enough to pay for what they had contributed to the stock, and because they were not equitably indebted to him.”
2. “ Because it sufficiently appears in and by the proceedings that the decree for the payment of four thousand dollars alimony in gross, instead of ten dollars per week, and upon *56wliich the decree in this case is based, was obtained by collusion, and is unauthorized.”
3. “ Because in no event can said complainant have been prejudiced by these defendants and their dealings with defendant Roeg beyond the sum of $130, which was the amount due and owing complainant when these petitioners took possession of said stock.”
4. “ Because said decree is against the weight of evidence.”

The positions taken by counsel for the motion in their first, third and fourth points above stated were all fully considered by this Court upon the hearing, and we find no occasion to review them; still a re-examination of the case fails to modify our views already expressed.

As regards the second point, the Superior Court had jurisdiction in the case in which the decree for alimony was made, and which constituted the complainant a creditor of James K. Burnham, and no appeal was taken therefrom. We know of no rule by which that decree can be impeached in this case. Its validity was not attacked upon the hearing when the cause was fully argued by able counsel. W e find nothing in this motion rendering a change in the opinion filed or a modification of the directions given for decree, necessary.

A re-hearing will not be had for the purpose of considering the gains or losses between parties engaged in a venture or enterprise of aiding or abetting fraudulent transactions. Neither do we feel called upon to consider whether or not the complainant in the action she has taken has selected the best remedy for redressing the injuries arising from the fraud perpetrated, when the one adopted is proper.

The motion must be denied with costs.

Cooley, C. J. and Champlin, J. concurred. Campbell, J. I concur in the result, on the ground that no question is raised which was not considered before.