
    *Wallace v. Richmond, Assignee.
    March Term, 1875,
    Richmond.
    Judgment by Default—Negligence of Defendant—Relief in Equity.—W is sued by R in debt on the note of B & Co. He employs counsel to defend the suit, and states to him that he never was a partner of B So Co., or in any way liable for the debt. He lives in the county, but pays no further attention to the case. At the next term of the court the counsel examines the docket, and though he sees a case of R against B & Co., he does not suspect'that that is the case against W, and therefore does not examine the papers; and no plea being entered., the office .judgment is confirmed. Equity will not, relieve W.
    This was a bill filed in the Circuit court of Norfolk county by George T. Wallace, to in-join a judgment which had been recovered against him by U. V. Richmond, as assigned of E. Richmond. It appears that in September 1868 L/. V. Richmond, assignee of E. Richmond, instituted an action of debt in the County court of Norfolk county against George T. Wallace, John Black and William Shannon, as late partners under the name and style of Black & Co., upon a note for $2,~ 133.22, bearing date April 12th, 1865, and signed Black & Co. The process was served on Wallace, but Black and Shannon living in North Carolina, the process was returned as to them ‘ ‘not found. ’ ’ No appearance or plea having been entered or filed for Wallace at the December term of the court, the office judgment against him was confirmed.
    The ground of equity relied on by Wallace is, that he was never a member of. the firm of Black & Co., *and was' not on any ground liable either on the note or for the debt for which the note was given. That when served with the process he spoke to James Murdaugh, a lawyer practicing in the court, and who had been for years, and was then, his standing counsel, telling him of the suit, and the ground of his defense, and directing him to defend the suit. That at the December term of the court Murdaugh examined the docket of the court, and though he saw a case on the docket in the name of Richmond, assignee v. Black & Co., it did not occur to him that this was the case against Wallace, and therefore did not examine the papers; and thus the case was not defended, and the office judgment was confirmed. Wallace' states in his evidence that he showed the process to Murdaugh when he spoke to him to defend the case; but this Murdaugh did not remember. It does not appear that Wallace paid any attention to the case after he spoke to Murdaugh, but he lived in the county, and might have been reached in time to make the defense by plea, if Mr. Murdaugh had found the case on the docket.
    The cause came to be heard on the 4th of April 1872, when the court dissolved the injunction and dismissed the bill, with costs. And thereupon Wallace applied to a judge of this court for an appeal; which was allowed.
    Scarburgh & Duffield, for the appellant.
    Goodwin & Crocker, for the appellee.
    
      
      Equitable Relief—Negligence.—in Ayers v. Morehead, 77 Va. 586, the rule is laid down in accordance with the decision in the principal case tliat where a1 party, through his own or his agent’s or attorney’s negligence fails to avail himself of a defence which he might have made at law, he will not be relieved in equity, citing the principal case and Haseltine v. Walton & Buckey, 16 Gratt. 120; Green & Suttle v. Massie, 21 Gratt. 358; The Marine Insurance Co. v. Hodgson, 7 Cranch 333; Richmond Enquires Co. v. Robinson, 24 Gratt. 552; Slack v. Wood, 9 Gratt. 403. See also, Dey v. Martin, 78 Va. 1; Wray v. Davenport, 79 Va. 26; Holland v. Trotter, 22 Gratt. 141; Canada v. Barksdale, 84 Va. 746 ; 4 Min. Inst. (3rd Ed.) 1405, and cases cited; Barton’s Ch. Pr. (2nd Ed.) 14, 28. See Black v. Smith, 13 W. Va. 780, citing the principal case and Meem v. Rucker, 10 Gratt. 506; Shields V. McClung. 6 W. Va. 79.
    
   Anderson, J.,

delivered the opinion of the court.

This is a bill in chancery to injoin a judgment at law. In general, any facts which proye it to be against *conscience to execute a judgment, and of which the injured party could not have availed ■ himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or agents, will authorise a court of equity to interfere by injunction to restrain the adverse party from availing himself of such judgment. (2 Stor. Eq. Jur., <j 887, and cases cited.) The author here declares the rule affirmatively,¡{that the injured party may be relieved .'ip equity in the cases described.

In Tapps’ adm’or v. Rankin, 9 Leigh 478, the rule is negatively declared, setting forth under what circumstances the party injured will not be entitled to relief in equity by Parker, J., who delivered the opinion in which a majority of the court concurred. The rule, he says, is well settled, “that after a trial at law, if there appear to be no fraud or surprise on the part of the plaintiff, equity cannot relieve the defendant from the consequences of mere negligence, notwithstanding it may be manifest that great injustice has been done him at law. If it appears that by proper diligence he could have defended himself successfully, however hard his case, equity must not interfere; and this upon sound principles of policy, which no court is at liberty tó ’ disregard.

In the recent case of Holland & wife v. Trotter, 22 Gratt. 136, relief was given upon' the ground of surprise, but upon principles, which are stated by Judge Christian who delivered the opinion of the court, entirely consistent with Tapp’s adm’or v. Rankin, supra.

In this case the court is of opinion that the facts upon which the plaintiff relies to show that it would be against conscience to execute the judgment at law, might have been relied on in his defense at law; and *that he does not show that he was prevented by fraud or accident, unmixed with fault or negligence in himself or his agent, from availing himself of them in his defense at law. It is true, that after the writ was served on him he retained counsel to defend the suit, and informed him of the grounds of his defense, to wit: that he was sued as a partner of Black & Co., and was not,, and never was, a partner or member of said firm, or in any way liable for said debt. But he gave no further attention to the suit. It does not appear that he ever spoke to his counsel again on the subject, or made any preparation for his defense, though he was probably at the place where the court was held during the term. His counsel entered no plea to set aside the office judgment, and made no defense whatever, and judgment went against him by default.

His counsel says he examined the docket, and saw no case upon it of Richmond, assignee v. Wallace. He saw the case of Richmond, assignee against Black & Co., but it never occurred to him that the appellant was sued in that case, and he did not look into the papers to see. Yet he had been informed by the appellant that he was sued as a member of that firm, and that his ground of defense was, that he was not, and never had been, a member of it; and he thinks he showed him a copy of the summons which had been served on him. His counsel says he did not remember to have been shown a copy of the summons, and was not aware that the appellee was interested in that suit, else he would have looked into the papers and entered a plea. But a plea denying the partnership could not have availed for his defense unless verified by affidavit; and the defendant was not there to make affidavit.

But being informed as to the character of the appellant’s defense, and knowing from the date of the summons *and its service, that in the regular course of procedure the case would be on the office judgment docket at that term of the court, it does appear extraordinary that he made no inquiry about the case. If he had inquired of the clerk, he, doubtless, would have been informed. It seems to the court a plain case of negligence on the part of the appellant’s attorney, not unmixed with fault or negligence on his part. And without deciding that mere inadvertence or forgetfulness on the part of the attorney would deprive a party of his right to relief in .equity, where the defendant himself had used proper diligence, and was chargeable with no laches, the court is of opinion that a court of equity could not interfere by injunction in this case to restrain the execution ?of the judgment, and to give the appellant another trial, who has already had his day in court, without overturning the well established rule in such cases. The decree of the court below must therefore be affirmed.

Decree affirmed.  