Hill v. Bowyer
| Decision Date | 21 April 1868 |
| Citation | 59 Va. 364 |
| Parties | HILL & als. v. BOWYER & als. |
| Court | Virginia Supreme Court |
1. A party against whom a decree has been rendered, without his appearance, may apply to the court to have the decree opened either by petition or by original bill. In either form it is an original proceeding, and may be commenced without previous leave of the court.
2. If application is made to the court for leave to file a petition to open a decree, and the application is rejected, this is not a legal adjudication upon the case presented in the petition, as it would be in the case of the refusal to allow a bill of review to be filed, in which case the leave is necessary to entitle the plaintiff to file it; and the party may therefore file his original bill to have the decree opened.
3. An original bill which seeks to correct errors in a decree by default apparent on its face, and also set it aside on the ground of mistake and surprise, having been filed without leave, cannot be treated as a bill of review. But a copy of the original record being filed with the bill, the court may consider and correct any errors apparent on the face of the decree, which may be corrected by the court, under the Code ch. 181, § 5.
4. Decrees by default in favor of husbands and wives give interest upon interest; but the counsel of the parties direct the clerk to correct the error by endorsement on any executions that might be issued upon them; which is done. The counsel had full authority to direct the correction, and to bind the wives as well as their husbands; and thus to correct the error.
5. In the absence of objection in the court below, an appellate court would presume that notices to take the depositions were duly given, the contrary not appearing; and an objection to depositions on this ground, where the decree was by default would not be available on a proceeding under § 5, ch. 181 of the Code.
6. The statute, Code, ch. 175, § 4, does not limit the class of cases in which the court may direct that notice may be given by publication; and it is no valid objection by a party upon whom process in the suit has been served, that he did not see or hear of the notice by publication of the taking an account by a commissioner, under the order of the court.
7. In the absence of objection in the court below, that the Commissioner had not regularly adjourned from time to time the taking the accounts, an appellate court would presume that they were regular; and the objection is not therefore available under § 5, ch. 181 of the Code.
8. A decree by default is made against a guardian and his sureties; and the process had not been served on one of the sureties. Upon a bill by the guardian and the other sureties to open the decree, no objection to the decree on this ground can be raised by them. Nor will the objection of multifariuosness alone be ground for reversing the decree.
9. A defendant upon whom process has been served, who wholly neglects his defence, or contents himself with merely writing to a lawyer who practices in the court to defend him, without giving him any information about his defence, or enquiring whether he is attending to the case, is not entitled to relief against a decree by default, on the ground of surprise, however grossly unjust the decree may be.
In January, 1851, James M. Bowyer and Ruth J., his wife, filed their bill in the Circuit Court of Albemarle county, in which they set out, that Achilles Wood, the father of the female plaintiff, departed this life about the year 1833, having made a will, which was duly admitted to probate in the county court of Albemarle. That he left a widow and two infant daughters; the female plaintiff and Rhoda, who married George Hill. That he provided that the estate might be kept together, unless the widow married again; but in that event or whenever the executor thought best, it was to be divided, one-third to the widow for life, and the residue in equal proportions to his two children.
That the executor declined to qualify, and Ryland Rhodes qualified as administrator with the will annexed. That in 1834 he was removed, and the estate was committed for administration to Bazallet Brown.
That in February, 1833, on motion of Rhodes, the administrator, an order was made appointing Commissioners to divide the estate; and a division was made. That there was a tract of land of six hundred and seventy-one acres, of which one hundred and eighty-five acres, including the dwelling house, were allotted to the widow, and one slave; the remainder of the land, with four slaves, was allotted to the two daughters.
That about the year 1835 or 36, the widow removed to the county of Greenbrier with her children, and about the same time married John Cooper. In 1839, William Carey was appointed guardian of the children. The only estate coming to his hands as guardian being the land and slaves. In June, 1840, Carey was removed from the guardianship, and Samuel S. Smith was at the same time appointed guardian in his stead, with Shannon Butt and Edwin R. Fanshaw as his securities.
That at the January term, 1845, of Fayette county court, an order was made to the effect that Ruth Jane Wood and Rhoda B. Wood, with the approbation of the court, made choice of Hiram Hill as their guardian, who together with Robert McCutchen, John Rodes, Charles Bibb and James Y. Waite, his sureties, entered into a bond in the penalty of $4,000, conditioned according to law. That at the April term, 1845, of the county court of Fayette, another entry is made, to the effect that H. Hill presented in court, under oath, an account of the property and effects belonging to his said wards, which had come to his hands; but though the office of the Fayette county court has been searched, yet no trace of such paper can be found, though at the time the said Hill was clerk of the court. That at the June term, 1850, of the court, upon the application of his sureties, he was removed, as appeared by a copy of the order filed with the bill.
That John Cooper dying, his wife, some years afterwards, married William Tracey, and they then lived in the county of Fayette.
The bill states, that all the slaves have disappeared; that it is said Smith sold one of them; that Tracey sold one or more of them; and that George Hill, after his marriage with Rhoda B., got into his possession one of the said slaves, and sold him.
George Hill and Rhoda B. his wife, the two administrators Rhodes and Brown, Smith and his sureties, Hiram Hill and his sureties, and Tracey and wife, were made defendants to the bill; and accounts were asked against the administrators and guardians.
Process was served upon all the parties, except Waite, one of the sureties of Hiram Hill, and the sureties of Smith, and Tracey and wife. The case was, however, compromised between Smith and his wards; and there was an order of publication against Tracey and wife as absent defendants; but the record states that there was no evidence of the execution of this order.
By an order made in vacation, on the 11th of February, 1853, which was modified by an order made in term in May, 1853, a commissioner was directed to take an account--First, of Rhodes' administration on the estate of Achilles Wood. Second, of Brown's administration on same estate. Third, Smith's guardianship account. Fourth, Hiram Hill's guardianship account; and, fifth, an account between Rhodes and Brown and the children of Wood. And the commissioner was directed, instead of serving personal notice on the parties of the time and place of executing the order, to have such notice published once a week for four successive weeks in some newspaper in the town of Charlottesville; and also to serve a notice on the counsel respectively engaged in the suit, of the time and place of taking said accounts, four weeks previous to the time of commencing the same.
The commissioner returned his report on the 14th of April, 1854; but the only account which it is necessary to notice is that of Hiram Hill as guardian of the two children of Achilles Wood.
The commissioner, in his report, states
In making out the account of Hiram Hill as guardian of his wards, it is commenced from the time of his appointment in January, 1845, and is carried on to June, 1850--the time when it was stated in the bill the guardianship terminated; which statement was founded on an office copy of the order by which he was removed, and which purported to be made at the June term, 1850.
The commissioner stating in his report that Hill had never attended before him, had filed no answer, and had paid no attention to the case, charged him not only with the rent of the land and the hire of the slaves until they were disposed of, from 1845 to 1850, but also charged him with the price or value of the four slaves. Of...
To continue reading
Request your trial