Syllabus.

143 App. S. 1, 24 L. ed. 31; Congress & E. Spring Co. v. Edgar, 99 U. S. 645, 25 L. ed. 487, 1 Am. Neg. Cas. 375; Burton v. West Jersey Ferry Co. 114 U. S. 474, 29 L. ed. 215, 5 Sup. Ct. Rep. 960, 10 Am. Neg. Cas. 568; Van Stone v. Stillwell & B. Mfg. Co. 142 U. S. 128, 35 L. ed. 961, 12 Sup. Ct. Rep. 181; Holloway v. Dunham, 170 U. S. 615, 42 L. ed. 1165, 18 Sup. Ct. Rep. 784.

We have reviewed all of the errors assigned by counsel for defendant, and they seem to be ample to justify a reversal. The judgment is therefore reversed with costs, and the cause remanded with directions to grant a new trial.

Reversed and remanded.

STAPLES v. STAPLES (1).*

EQUITY; BILLS OF REVIEW; NEWLY DISCOVERED EVIDENCE.

An order vacating an order granting leave to file a bill of review on the ground of newly discovered evidence, and denying leave to file such a bill, was affirmed, it not appearing to this court that the lower court erred in its ruling that a suflicient showing had not been made that the alleged newly discovered evidence could not have been produced on the first hearing by the exercise of due diligence.

No. 2663. Submitted January 4, 1915. Decided February 1, 1915.

HEARING on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia, holding an equity court, vacating a prior order granting leave to file a bill of review and denying leave to file the bill.

Affirmed.

*Bill of Review-Newly Discovered Evidence. The authorities passing upon right to bill of review for newly discovered evidence are presented in the note to Smith v. Rucker, 30 L.R.A. (N.S.) 1030.

The COURT in the opinion stated the facts as follows:

This is an appeal from a decree dismissing a bill to review a decree granting a divorce on the cross bill of the defendant.

Charles W. Staples filed a bill for divorce from his wife, Mary M. Staples, on the ground of adultery with one Edward J. Hoffmeister, who was named as co-respondent.

Both defendants answered, specifically denying the charges of the bill, and defendant Mary M. Staples filed a cross bill for separation on the ground of cruelty.

The court, on May 5, 1913, entered a decree dismissing the bill of plaintiff, and sustaining cross bill of the defendant.

October 29, 1913, plaintiff filed a petition for leave to file a bill of review alleging newly discovered evidence, accompanied by several affidavits tending to show misconduct by defendant unknown to plaintiff at the former trial.

Leave to file was granted October 29th, and it was further ordered that the petition for leave may stand as said bill of review. Defendant answered, denying the charges made, and also affidavits tending to show that defendant's counsel were not informed of the date of ordering said petition for leave, and could not be present at the hearing thereof.

Defendant moved November 7, 1913, to vacate the order for leave to file the bill.

The record consists of many affidavits, some concerning evidence that was heard on the former trial.

On hearing, January 7, 1914, the court entered a decree vacating the order and denying the leave.

tiff has appealed.

Mr. Webster Ballinger for the appellant.

Mr. W. G. Gardiner for the appellee.

From this the plain

Mr. Chief Justice SHEPARD delivered the opinion of the Court:

It is unnecessary to review the various affidavits in this case,

some of which purport to set out the evidence submitted on the former hearing. It would serve no useful purpose to recite the contents of these affidavits which are filled with charges of misconduct.

It did not appear to the court below that the newly discovered facts could not have been produced on the former hearing by the exercise of due diligence.

We are unable to perceive anything in the record on which error can be founded, and the decree is affirmed with costs. Affirmed.

STAPLES v. STAPLES (2).

EQUITY; DIVORCE; ADULTERY; EVIDENCE.

1. A decree granting a husband an absolute divorce on the ground of his wife's adultery, and taxing the costs and counsel fees against the corespondent named in the suit, was affirmed, it appearing that the testimony was sufficient to support the ruling of the lower court.

2. Remarks made by the lower court in a divorce suit to the effect that the co-respondent was the same person who had been named in a former suit between the same parties as co-respendent are not sufficient to indicate that the court based its decree granting a divorce to the husband for the adultery of his wife with such co-respondent upon testimony given at the trial of the former suit.

No. 2745. Submitted January 4, 1915. Decided February 1, 1915.

HEARING on an appeal by the defendants, a wife and co-respondent, from a decree of the Supreme Court of the District of Columbia, holding an equity court, granting the plaintiff an absolute divorce from his wife, and requiring the co-respondent to pay the costs of suit and counsel fees to the plaintiff's attorney. Affirmed.

The COURT in the opinion stated the facts as follows:

This suit was filed February 7, 1914, by Charles W. Staples against Mary Margaret Staples and Edward J. Hoffmeister, as co-respondent.

It asks an absolute divorce, charging acts of adultery committed by defendant and the co-respondent on divers and sundry occasions during July, August, September, and October, 1913. The parties are the same as in appeal Number 2663, recently decided [ante, 156].

Both defendants denied the allegations of the bill. Testimony was taken in open court tending to show that co-respondent Hoffmeister was foreman of a laundry owned by William B. Long, situated at 1300 Eleventh street southeast, from July 1st to November 13, 1913. During the time he had a bed on the second floor on the southwest corner, facing Eleventh street, which was curtained off from the main room, in which he slept. At Hoffmeister's suggestion, Long employed Mrs. Staples as an occasional assistant in the laundry, engaged in marking and ironing clothes. She had been employed not more than a half dozen time for work in the afternoon. Other testimony tended to show that Mrs. Staples came to the laundry three or four times a week during the entire time that Hoffmeister was there. That she was admitted by Hoffmeister, who would go across the street after her arrival and return with mugs of beer. She was seen at the window of the room occupied by Hoffmeister one night about 12 o'clock. There was no one else in the building and no work was going on.

Defendants both denied the charges of misconduct.

The court, after hearing the testimony, stated: "I have no doubt about this woman having committed adultery with this man night after night there." And thereupon entered a decree for the plaintiff of absolute divorce. The costs of suit and counsel fee, to be paid by the plaintiff for the defendant, to wit, $50, were taxed against the codefendant, Hoffmeister.

The defendants appealed and assigned for error that the court erred in finding as a fact that the allegations of the bill

Opinion of the Court.

[43 App. had been proven. Second. That the court erred in holding that there was sufficient testimony to warrant the court in signing a decree granting to the plaintiff an absolute divorce. Third. That the court erred in considering the testimony given at the trial of another case in determining the rights of the parties in this case.

Mr. W. G. Gardiner and Mr. Blaine Coppinger for the appellants.

Mr. Webster Ballinger for the appellee.

Mr. Chief Justice SHEPARD delivered the opinion of the Court:

We find no foundation for the first and second assignments of

error.

The court, who heard all the witnesses in the case, found as a fact that the allegations of the bill had been proved. The testimony was sufficient.

The third assignment of error is founded on the remarks of the court to the effect that the co-respondent was the same person who had been charged in the former suit as co-respondent. This was a fact which the court, who heard the plaintiff's bill of review, the decree in which was affirmed in Number 2663 [ante, 156], knew as a fact that Hoffmeister had been the corespondent in that case. Further than this it does not appear that the court considered the testimony in the former case. The court did not base its decree upon any evidence in the former The reference to the identity of the parties in the two cases had nothing to do with the findings of the court.

case.

The decree must be affirmed, with costs.

Affirmed.