Davis v. Commonwealth

• Decision Date: 05 March 1861
• Citation: 57 Va. 134
• Parties: DAVIS, SHERIFF v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

57 Va. 134

DAVIS, SHERIFF v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 5, 1861

(Absent LEE J.)

1. All judgments where there has been no appearance by the defendant are judgments by default, within the meaning of the act. Code ch. 181, § 5, p. 681.

2. If a party obtains a supersedeas to a judgment by default, before applying to the court in which the judgment was rendered, or the judge thereof, to correct the errors of which he complains, his supersedeas will be dismissed as improvidently awarded.

This was a supersedeas to a judgment of the Circuit court of the city of Richmond, rendered on the 25th of February 1860, in favor of the Commonwealth against Thomas K. Davis sheriff of Prince William county and his official sureties. The facts are stated by judge Allen, who delivered the opinion of the court.

Morson, for the appellants.

The Attorney General, for the Commonwealth.

ALLEN P.

A notice at the instance of the Commonwealth was given to the plaintiff in error, a sheriff and the securities in his official bond, that a motion would be made for a judgment against them for a balance of license taxes. The notice having been duly proved on the day specified, the defendants were called but came not, and at the instance of the Attorney General the motion was docketed and continued to a future day of the same term. It was afterwards continued at the like instance to other days named until the 21st February, 1860, when on the motion of the Attorney General it was continued until the then next regular term of said court for the trial of civil causes. On a subsequent day of the same term the last order of continuance was set aside at the instance of the Attorney General, and on his motion the court proceeded to render a judgment against the sheriff and his securities; to which judgment a supersedeas has been awarded by this court.

From the foregoing statement it seems that the defendants named in the notice never appeared or made any defence to the motion, and the preliminary question arises whether this court has jurisdiction at this time to decide upon the regularity of the proceedings.

The Code p. 681, ch. 181, § 5, provides, that the court in which there is a judgment by default or a decree on a bill taken for confessed, or the judge of said court in the vacation thereof, may on motion reverse such judgment or decree for any error for which an appellate court might reverse it, if the following section was not enacted, and give such judgment or decree as ought to be given. § 6, the following section referred to in the foregoing section, directs that no appeal, writ of error or supersedeas shall be allowed by an appellate court or judge for any matter for which a judgment or decree is liable to be reversed or amended on motion as aforesaid, by the court which rendered it or the judge thereof, until such motion be made or overruled in whole or in part.

These sections of the Code embrace the provisions contained in the Rev. Code of 1819, p. 512, §§ 108, 109, 110, authorizing clerical mistakes, & c., to be amended in certain cases by the court in which a judgment or decree was rendered, or the judge thereof in vacation; and also the provision contained in the act of March 12, 1838, Sess. Acts p. 74 extending the act of Jeofails, to judgments rendered in the circuit courts for default of appearance, and providing for the reversal of such judgments by the court rendering them, or the judge thereof in vacation, for certain errors which would be ground for the reversal thereof in the court of appeals. The Code applies to all judgments by default whether for want of appearance or for failing to comply...