
    *Callaway Executor v. Alexander &c.
    March, 1837,
    Richmond.
    Equitable Relief — Decree by Default — Laches"-—Case at Ear. — In suit by legatee against executor, for an account, and payment of the legacy, subpoena is served on the executor in Jun'e 1828 ; order made for account in October 1829 ; and decree by default against the executoi, for the legacy, in May 1831. Then, executor flies bill against legatee, stating, that complainant is, and was at the institution of the former suit, a nonresident of the state ; that shortly after the subpoena was served on him, he wrote to an attorney practising in the court, requesting him to file his answer and attend to the suit for him ; that the attorney never filed the answer or attended to the suit, and died during the progress of it, complainant being ignorant of his-neglect or of his death, until after the decree, otherwise he would have employed other counsel; that though the commissioner’s notice for taking the account was published in a newspaper, complainant, not taking that paper, never saw the notice or knew of the proceedings- before the commissioner ; and that, on a fair settlement, complainant would be found in advance to his testator’s estate : and praying an injunction to restrain proceedings on the decree, and general relief. Held, upon the case stated in the bill, the complainant was guilty of laches, and is not entitled to relief.
    Decree — Surprise—Injunction.—A bill of injunction will lie to restrain proceedings on a decree obtained by surprise.
    James Callaway of Bedford county, by his last will and testament, gave a legacy of ¿500. to his daughter Lucy Callawaj’ -r and for the purpose of paying all his debts and legacies, he devised and bequeathed to his executors a large property, real and personal, to be sold, or otherwise disposed of or managed, as to them should seem most meet and prudent. ■ Christopher Clark, James Steptoe, William Callaway, Henry P. Callaway, John Callaway and George Calla-way qualified as executors. Lucy Calla-way, by writing under her hand and seal, assigned her legacy of ¿500. to Elizabeth Alexander; who, on the 15th of January 1828, instituted a suit in the superiour court of chancery for the district of Lynchburg, *against Christopher Clark and John Callaway, the only surviving executors of James Callaway deceased, and against the surviving sureties bound in the bond given by the executors, and the representatives of the deceased sureties, for a settlement of the accounts of the executors, and payment of the legacy of ¿500. assigned by Lucy Callaway to the plaintiff. The subpoena was executed on Christopher Clark the 25th of February 1828, and on John Callaway the 9th of June following. The bill was filed at July rules 1828; and by an amended bill, filed in October 1829, Lucy Callaway was made a party defendant. Christopher Clark died pending the suit, and his death was suggested on the record at September rules 1829. At October term 1829 (the process appearing to have been duly served on all the defendants, except one of the sureties, who was returned no inhabitant) the suit was dismissed by the plaintiff as to all the defendants, except John Callaway the surviving executor, and Lucy Callaway. Whereupon, the cause coming on for hearing 1 ‘upon the bill, answer of Lucy Callaway, exhibits, and the subpoena executed on John Callaway,” the court ordered that one of its commissioners should take and report an account of the administration of James-Callaway’s estate. The commissioner’s report stated, that under this order he had issued his notice to the parties, appointing the 25th of March 1830 for taking the account ; on which day the plaintiff by her counsel attended and that no evidence being adduced except the deposition of Peter Saunders, who testified that he had, at various times, paid to John Callaway, as one of the executors of James Callaway, sums of money amounting to about 4800 dollars, towards the discharge of bonds executed for the purchase money of real property belonging to the testator’s estate, and sold by the executors, — the commissioner, upon this evidence, had debited John Callaway the executor with 4800 dollars, and credited him with 240 dollars commission on that amount, leaving a balance *in the hands of the executor, due the estate of his testator, of 4560 dollars. It appeared that notice to the executor John Callaway, of the time and place of taking the deposition of Peter Saunders, had been given by publication for four successive weeks in a newspaper printed in the town of Lynchburg.
    The court of chancery, on the 14th of May 1831, approving the commissioner’s report, decreed that the defendant John Callaway should pay to the plaintiff the sum of 2066 dollars 67 cents, with interest on 1666 dollars 67 cents, part thereof, from the 31st of December 1829 until paid, and costs; but the plaintiff was not to have the benefit of the decree, until she should execute to the said defendant a refunding bond in a penaltj' equal to double the amount decreed.
    In May 1832, John Callaway filed a bill in the circuit superiour court of law and chancery for the town of Lynchburg, against Elizabeth Alexander the plaintiff, and Lucy Callaway his codefendant, in the suit above mentioned, setting forth the proceedings in that suit, and that an execution had issued upon the decree, which had been levied on his properly. The bill stated that the complainant was, at the time of the institution of the former suit, and ever since had been, an inhabitant of North Carolina, and when the process was served on him, was on a visit to Virginia: that shortly after the service of the process, he wrote to Callohill Mennis esquire, an attorney practising in the superiour court of chancerj* of Lynchburg, requesting him to attend to the suit for him, and to file his answer therein, which the complainant supposed could be done without his personal presence: that not having heard from mr. Mennis, nor learned the fact that he had died pending the suit, the complainant never doubted that his answer was filed and his business properly attended to, and therefore gave himself no farther trouble about the suit, of the state and progress of which he had no knowledge until he learned that a decree had been rendered against *him: that had the complainant been apprised of mr. Mennis’s death, or that he had failed to file the answer, or attend to the case, he would have employed other counsel: that, as the case was, he was wholly unrepresented in the suit, and the decree was rendered against him by default: that he had no notice or knowledge, either of the taking the deposition of Peter Saunders, filed in the cause, or of the settlement before the commissioner ; for though notices were published in the Lynchburg newspapers, yet the complainant, not taking any of those papers, never saw the notices: that if complainant had been present when the account was taken, he could have shewn that the money paid him by Saunders was duly applied to the payment of the testator’s debts: that upon a full and fair settlement, the complainant would be found in advance to the estate, or indebted to a very small amount, if indebted at all: that claims against the estate were still outstanding, and if a particular claim of one Langhorne, which was in suit, should be recovered, the estate in complainant’s hands would be wholly inadequate to the payment of the debts. Complainant further charged that the proceedings in the former suit were irregular, and that it -was not competent to the plaintiff to dismiss her suit (in the actual state of the cause) as to some of the defendants, and forthwith take it up for hearing as to the others. Wherefore the bill prayed, that Elizabeth Alexander might be restrained from proceeding on the decree and execution aforesaid, until the matter could be heard in equity ; that the injunction might be finally perpetuated; and general relief.
    The injunction was awarded.
    With his bill, the complainant exhibited his letter to Callohill Mennis, dated the 2d of September 1828; which contained (inter alia.) the following instruction : “There is a suit brought against the executors of James Callaway, and their securities, in the superiour court of chancery *holden in Lynchburg, by Elizabeth Alexander, which you will attend to, and answer her bill. You will not need my presence. We have no funds in hand, and no settlement has as yet taken place.”
    Elizabeth Alexander never answered the bill.
    Lucy Callaway answered, controverting the alleged irregularity of the proceedings in the former suit; denying that on a fair settlement of his accounts, the complainant would be found either in advance to the estate, or indebted only to a small amount; and, on the contrary, expressing her belief that on such settlement there would appear in his hands a balance amply sufficient to pay the legacy bequeathed to her, out of the funds charged with the payment thereof.
    On the 21st of June 1832, the court, on the motion of the defendants, dissolved the injunction; and on the petition of the plaintiff, one of the judges of this court allowed him an appeal from the order of dissolution.
    Leigh, for the appellant.
    Grattan and Johnson, for the appellees.
    
      
      Equitable Relief — Decree by Default — Laches.—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 inquiring 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. Hill v. Bowyer, 18 Gratt. 365, 385, citing the principal case as conclusive authority for holding the defendant bound by his laches. See the principal case also cited in Hubbard v. Yocum, 30 W. Va. 754, 5 S. E. Rep. 874.
      See further, foot-note to Hill v. Bowyer, 18 Gratt. 366 ; monographic note on "Laches” appended to Peers v. Barnett, 12 Gratt. 410.
    
    
      
      Decree — Surprise—Impeachment by Original Bill.— An original hill 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 Anderson v. Woodford, 8 Leigh 329; Hill v. Bowyer, 18 Gratt. 375, 381, 384. See also, Erwin v. Vint, 6 Munf. 267.
      On the subject of injunctions, see generally, mon-ographic note on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518. As to decrees', see generally, monographic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.
    
   TUCKER, P.

I have struggled hard to sustain the appellant’s claim to be heard in opposition to the decree by default, but I do not think it can be done. The appellant cannot be entitled to relief after his gross neglect. The process was served upon hint in June 1828; the bill being filed before the return day. The decree for account was not entered until October 1829; so that he had 15 months to file his answer. His counsel could not file one for him. But it is said, an answer was hot necessary; a defence before the commissioner was all that was necessary. Admit it: but how was the counsel to make this defence, unassisted by his client, and unsustained by a single voucher? The sickness or death of mr. Mennis was not then the true cause of the appellants being undefended. Had he been in health, *and before the commissioner, he could have made no defence for him, since it is not pretended that he was furnished with information or vouchers. It would be going farther than we have ever gone if a rehearing were awarded to a party who has so grossly neglected his defence. I consider the case as analogous to injunctions to judgments at law, alleged to have been obtained by accident or surprise; and I am not of opinion that the practice of the court would, when most loose, have justified an interference in a case like this. Averse as I am to too much rigour in the application of the rule which denies relief to a party who has neglected his defence, we should fall, I think, into the opposite error, if we were to indulge a party who has utterly neglected his case for three years, having in the whole course of that time neither seen or communicated with counsel, nor supplied him with a voucher or an account. And although it may be true that he never heard of the notices to take the account or the deposition, yet as he knew of the existence of the suit, it was his duty, either to en-quire as to its progress, or to take that newspaper which was likely to give information. The provision of the act which declares such notices valid and sufficient would be altogether nugatory, if parties were afterwards permitted to deny notice.

As to the form of this proceeding, I see no objection (see Sheldon v. Aland, 3 P. Wms. 110), and still less to the principle of the cases of Rrwin v. Vint, 6 Munf. 267, and Kemp. v. Squire, 1 Ves. sen. 206. Those cases appear to me to sustain the true principles of equity, which relieves against accident and surprise, and is more solicitous to come at justice between the parties than to adhere to a harsh and rigorous rule, which in very many instances subserves the views of the sharper, rather than make a grain of allowance for omission- or neglect. In this case I am consoled by the hope that this ample estate was sufficient to pay the legacy of the testator’s daughter, and that the appellant is in no danger of ultimate loss. At least he will merit it, if it be incurred. I am of opinion to affirm the decree.

BROCKHNBROUGH, J.

I concur in the opinion of the president.

The other judges concurring in the opinion that the decree should be affirmed, it was affirmed accordingly.  