
    Erwin v. Vint.
    Decided, Jan. 18, 1819.
    i. Decree by Default — Impeachment by Original Bill. —A final decree by default, may be set aside at a subsequent term, for good cause shewn; in a case where relief cannot be given by bill of review, or bill to impeach the decree for fraud in obtaining it. (1)
    a. Same — Same—Case at Bar. — In this case the circumstances shewn were that the defendant against whom the decree was rendered, was prevented by mistake and accident from filing his answer, and that, in fact, his title was good to the land in controversy.
    Sarah Erwin widow, executrix and dev-isee of Edward Erwin deceased, in her own right and as next friend to Hannah Erwin and John Erwin his infant children and devisees, presented a Bill to the Superior Court of Chancery for the Staunton District, on the 9th day of July 1816, to set aside a decree of the said Court pronounced, on the 8th of December 1815, against the said Edward Erwin, in his life time, by default, in consequence of his having failed to answer a Bill exhibited by William Vint against him, with William, John and James Bells defendants.
    *The decree in question, as to the said Edward Erwin, required him to execute to the plaintiff Vint a conveyance of a tract of land, with special warranty; and permitted the said plaintiff to take peaceable possession thereof: directing that he be forever quieted in the said possession.
    As to the Bells, it was decreed, that, on the said plaintiff’s paying or tendering to. the defendant William Bell a certain sum of money, the said William Bell should execute to him a deed of bargain and sale for the same tract of land, with special warranty, and covenant to refund the money with interest, in case the plaintiff should at any time be evicted by a title paramount.
    The grounds alledged for setting aside the decree, were, that the defendant Erwin had been prevented at one time by a mistake as to the day of session of the Court, (which had frequently been changed by the Legislature,) and disabled by an accidental hurt to his knee at another time, from attending and filing his answer; and that the Complainant his executrix and dev-isee was now prepared to shew that, in fact, his title was good to the land, and paramount to any claim on the part of the other defendants William, John and James Bells, or of the plaintiff Vint, neither of whom had any title, in law or equity, to recover the said land, against him.
    The Bill prayed that Vint should be held to answer; but, without waiting for his answer, notice was given that a motion would be made to set aside the decree; and the statement in the Bill for that purpose was supported by exhibits and affidavits: but Chancellor Brown overruled the motion with Costs; whereupon the Complainant Sarah Erwin appealed to this Court.
    Stanard for the appellant.
    As a general proposition, it is admitted that, after the term at which a final decree has been rendered, the Court rendering such decree has no power to set it aside or change it, except by bill of review, or on the ground of fraud. But to this proposition there is an exception, where the decree has been by default, and without investigation of the merit. — Cases of this kind are not within the scope of bills of ^review, nor of bills to set aside decrees obtained by fraud; and therefore it is unnecessary, as it would be fruitless, to resort to either of those remedies. Yet, in such cases, it is within the sound discretion of the Court, for good cause shewn, to open the decree or the enrollment of it, and let in an enquiry into the merits, 
    
    This exception to the general rule, is supported not only by authority, but the soundest reason. The decree being by default, the cause of the default can never be a subject of enquiry until the decree has been pronounced, and generally not until after the term has past. But the párty may have been prevented from asserting his rights in proper time, by insuperable obstacles, without any laches on his part, and may be prepared to shew a clear title to the subject in controversy.
    A Bill of Review will not redress the mischief; because that only lies for error apparent on the face of the decree, or for evidence discovered after the decree. A Bill to set aside the decree for fraud will not lie; because the plaintiff obtained it not by fraud, but by the misfortune of the defendant. 'If follows therefore that, unless the Court can give relief upon an application in some other form, a most unjust decree may be rendered, (as in this case,) against a party whose default is perfectly excusable, and yet there can be no redress I
    Eeigh contra,
    challenged the Counsel for the appellant to produce any other case in which the exception contended for was recognized. He suggested that, in the cases cited, the suit may have been still pending as to some of the parties, though finally decided and enrolled as to others. He also referred to Mussel v. Morgan, 3 Bro. Ch. cases, 74, as tending to establish a different doctrine.
    Stanard in reply. The case in 1 Vezey senr. 205, was decided with much consideration, upon a search for precedents; and the cases there cited are directly in point. In Robson v. Cranwel, I Dick. 61, the first precedent, the applicant for opening the enrollment was the only plaintiff, and the decree was one dismissing his bill; and, while it does not appear that there was more than one defendant, *yet, if there were many, the dismission of the bill terminated the suit as to all. In Benson v. Vernon, 3 Bro. Pari, cases, 626, and also in the principal case of Kemp v. Squire, there was but one plaintiff and one defendant. I am sure that Mr. Eeigh would not have deliberately hazarded the surmise he has made, even if the cases were not so explicit. For deliberation would have satisfied him, that a decree is never enrolled until the suit is terminated as to all the parties.
    The case from 3 Bro. Ch. cases, does not conflict with that from Vezey. It only shews that a decree obtained by fraud cannot be set aside, on motion, or by petition. And why? Because, fraud or no fraud being the matter in dispute, both parties are entitled to be heard regularly on that question ; and the decree stands or falls as it may be decided. The Court with good reason say, we will not anticipate the decision of that question by a summary enquiry, but a bill shall be filed, that it may be regularly put in issue. Between that case and this, there is a broad line of distinction. The power I contend for, is exercised only over decrees by default. The grounds on which it is exercised, are the matters of excuse for the default, which are collateral to the question that may be brought in issue, and on which the decree must be founded; and these are always proved in a summary manner, often by affidavits of the parties, and in no wise operate on, or influence the decision of the questions involved in the litigation. A formal Bill is therefore unnecessary in cases like the present. But where the question is, whether the decree was obtained by fraud, the decision upon the merits of the case may obviously be affected in a great measure by the decision of that question.
    
      
      Decree — Impeachment by Original Bill — Surprise.— An original bill will lie to impeach a decree on the ground that it was obtained by surprise or mistake. To sustain this proposition, the principal case is cited in Callaway v. Alexander, 8 Leigh 119; Anderson v. Woodford, 8 Leigh 328; Hill v. Bowyer, 18 Gratt. 375, 381; Boner v. Boner, 6 W. Va. 381. If the decree hasbeen rendered by default, itmay perhaps be corrected otherwise than by an original bill. Manion v. Fahy, 11 W. Va. 494, citing principal case. See also, foot-note to Byrne v. Edmonds, 23 Gratt. 200. The principal case is also cited in Ayers v. Blair, 26 W. Va. 563.
      (1) Note. A Bill to set aside the decree, was filed in this case; but the proper mode of proceeding appears to be by Petition. See 1 Vezey senr., 205; and Ambler, 89.—Note in Original Edition.
    
    
      
       Kemp v. Squire, 1 Vezey senr. 205; Cunyngham v. Cunyngham, Ambl. 89.
    
   JUDGE ROANE

pronounced the following opinion of the Court.

Under the circumstances of this case, and on the authority of the case of Kemp v. Squire, 1 Vezey Senr. 205, the. Court is of opiniofi that the Decree ought to have been set aside, and the appellants permitted to file their answers, on payment of costs, in order to a trial of the '^cause upon its merits. The decree appealed from is therefore reversed, with Costs, and the cause remanded, to be proceeded in according to the principles of this Decree.  