Preston v. Kindrick

• Decision Date: 08 July 1897
• Citation: 94 Va. 760,27 S.E. 588
• Parties: PRESTON v. KINDRICK.
• Court: Virginia Supreme Court

27 S.E. 588

94 Va. 760

PRESTON

v.KINDRICK.

Supreme Court of Appeals of Virginia.

July 8, 1897.

Judgment—Equitable Relief—Remedy at Law —Notice of Suit.

1. A party cannot obtain equitable relief against a decree rendered in a cause to which he was a party, on the ground that no process was served on him, where the process appears to havebeen executed by the return, and by the recital in the decree taking the bill for confessed, unless a false return of service was procured or induced by plaintiff therein, or he can in some way be connected with the deception.

2. In no event was complainant entitled to equitable relief where she did not show that she did not have actual notice of the suit and proceedings therein until after the decree complained of had been rendered.

3. Though the pleadings and proof in a suit by a vendor to subject the land to payment of the price did not authorize a personal decree against defendant for the deficiency after sale, where the court had jurisdiction of the parties and the subject-matter, rendition of the personal decree was merely an error for which relief could be had under Code, § 3451, and hence equitable relief against such decree would not be granted.

Appeal from circuit court, Washington county.

Bill by M. E. Kindrick against Robert A. Preston and others to enjoin the collection of a judgment, set aside certain decrees, and for general relief. Prom a decree in favor of plaintiff, defendant Preston appeals. Reversed.

D. Trigg, for appellant.

J. S. Ashworth, for appellee.

BUCHANAN, J. In the year 1892 the appellant filed his bill in the circuit court of Washington county to subject a parcel of land to the purchase price thereon from one Bratton, to whom he had sold it The bill alleged that Bratton had assigned his contract of sale to Mrs. Kindrick, one of the appellees. Both were made parties defendant to the bill. Neither of the defendants appeared, and a decree was entered taking the bill for confessed, in which it was recited that it appeared to the court that all the defendants had been duly served with process, and a sale of the land directed. A sale was made, reported to the court, and confirmed. The proceeds of sale were not sufficient to pay the entire purchase money, and a decree was entered against Bratton and Mrs. Kindrick for the residue thereof, and the cause stricken from the docket at the October term of the court 1892.

In June, 1895, Mrs. Kindrick filed her bill to enjoin the collection of that sum, and also to set aside and annul the decrees under which the land was sold, allow her to pay the purchase money due thereon, and for general relief. The ground upon which she based her right to relief was that she had no notice of the suit or sale, and that the return of the sheriff showing that he had execcuted process upon her was false, and a fraud upon her, and that the appellant, the plaintiff In that suit, and the purchaser of the land, had notice that she was ignorant of the suit, and of the proceedings had therein. Preston answered, and denied all notice, as did Naff, to whom Preston bad sold the land. The sheriff was made a party, but no answer was filed by him. Answer under oath was waived as to all defendants. Mrs. Kindrick, wnose deposition was objected to testified that no process was served upon her. No proof was taken to sustain the allegations of her bill that she had no actual knowledge of the suit, or of the proceedings thereon, or that Preston had any knowledge that process had not been served upon her, or that he knew that she was ignorant of the suit, or of the proceedings therein, as she alleged.

The circuit court held that no process had been executed upon Mrs. Kindrick, and granted the relief prayed for.

The question involved in this appeal is the right of a party to go into a court of equity to obtain relief against a decree rendered in a cause to which he was made a party, on the ground that no process was served upon him, when the process appears to have been executed by the return of the sheriff, and by the recital In the decree of the court taking the bill for confessed.

The decisions of the courts upon this question are conflicting, and the reasoning of the judges upon neither side is entirely satisfactory.

One line of cases holds that a party who has been injured by a judgment rendered in his absence may have relief In equity if he can succeed in showing that he was not summoned, and did not hear of the proceedings In time to make defense or to obtain a new trial, and that he has a meritorious defense. Freem. Judgm. § 495.

Another class of cases holds that a court of equity cannot grant relief in such a case unless the false return of service was procured or induced by the plaintiff, or he can in some way be connected with the deception; thus likening the case to those cases in which the defendant has been prevented from setting up his defense by the trickery or fraud of his adversary.

The rule of this latter class of ...