
    *Platt v. Howland.
    December, 1839,
    Richmond.
    (Absent Parker and Cabell, J.)
    Chancery Practice — Decree against Absent Defendant— How Redress Obtained. — In a suit in equity against an absent defendant alleged to be indebted to the plaintiff, and a home defendant having effects in his hands, the plaintiff should prove himself in a legal manner to be a creditor of the absent defendant ; but if a decree be rendered without such proof, the absent defendant cannot obtain redress by appealing from-the decree ; he must seek it in the mode prescribed by the statute, that is, he must appear in the court which pronounced the decree, and petition to have the cause reheard.
    Same — Same—Same.—Upon the absent defendant’s giving security for payment of costs, he will be admitted to answer the bill; but the court will not set aside the decree so soon as the answer is filed. After issue is joined, the parties on both sides will have an opportunity of examining their witnesses, the cause will be matured for rehearing, and, upon a rehearing, such decree will be mad e as may be just and right.
    On the second of July 1834, Gideon How-land sued out of the office of the circuit court of Henrico a subpcena in chancery against Daniel Platt and Jonathan W. Beers, with an indorsement thereon, stating that it was “to attach the estate, moneys, debts, goods and effects of the defendant Daniel Platt in the hands of the other defendant, so that he be restrained from paying away, conveying or secreting the debts by him owing to, or the moneys, goods and effects in his hands belonging to the defendant Daniel Platt, until the further order of the court.”
    At the rule day to which the process was returnable, the plaintiff filed his bill, alleging that Platt was justly indebted to him in the sum of 433 dollars and 40 cents, with interest thereon from the eleventh day of December 1833, as appeared by his account therewith filed; *that Platt resided out of the commonwealth ; and that Beers had effects in his possession to a large amount, belonging to Platt.
    Beers answered, saying that he has no per sonal knowledge of the plaintiff’s demand, except from admissions of Piatt, from which he believes Platt to be indebted to the plaintiff ; that he has in his hands, as the property of Platt consigned by him for sale, two barouches and one sulky, which he supposes to be worth 500 dollars or thereabouts, which he is ready to surrender to the order of the court; that he has not had a final settlement of accounts with Platt, and cannot say, therefore, whether he owes Platt any money ; but he will settle the account at any moment, and account at once for the balance, if any.
    Against Platt, the plaintiff proceeded in the mode prescribed by law against absent defendants; and he failing to appear and answer, on the motion of the plaintiff, his bill was taken for confessed as to that defendant. And the cause coming on to be heard, the court, on the 23d of January 1836, decreed that the sheriff of Henrico county sell the two barouches and sulky by public auction, to the highest bidder, in the manner prescribed by law for the sale of perishable property, and out of the proceeds of sale pay to the plaintiff the sum of 433 dollars, with interest from the 11th of December 1833 till paid, and the costs, and deposit the residue (if any) in the bank of Virginia, to the credit of the cause. In case there should not be a sum sufficient, after deducting the charges of sale, to satisfy the sum aforesaid with interest and costs, then, unless Beers should admit a fund in his hands sufficient to make up the deficiency, he was directed to render before a commissioner an account of the property, goods and moneys of Platt which had come to his hands prior to the service of the subpoena. The decree provided that the plaintiff was not to have the benefit ^thereof, until he, or some person for him, should enter into bond with security, in the clerk’s office, in a penalty equal to double the money to be received by him under the decree, payable to Platt, and conditioned as prescribed by law in the case of absent defendants.
    Bond with security was given accordingly.
    On the 4th of July 1836, Platt presented a petition to a judge of this court for an appeal from the decree, assigning as error, that it was rendered without any proof to support the claim. The judge allowed the appeal on the usual terms ; but afterwards on the 20th of February 1837, this court, being of opinion that it was improvidently allowed, ordered that it be dismissed with costs.
    A copy of the order of this court dismissing the appeal being transmitted to the court below, the plaintiff and the defendant Platt were heard in that court, by counsel, on the 10th of April 1837, upon the motion of the said defendant for leave to file his answer.
    The court, having considered the motion, made an order on the 19th of June 1837, allowing the answer to be filed, upon security being given for the payment of such costs as might be awarded to the plaintiff, and also for the fees which would become due from the said defendant to the officers of the court. The security was accordingly given, and the defendant filed his answer, to which the plaintiff replied generally. Immediately thereupon, the defendant moved the court to set aside the interlocutory decree pronounced on the 23d of January 1836; which motion was opposed by the plaintiff. The parties being fully heard, the motion was overruled.
    Whereupon, on the petition of Platt, an appeal was again allowed him by a judge of this court.
    Mayo for the appellant.
    Lyons for the appellee.
    
      
      Chancery Practice — Decree against Absent Defendant — How Redress Obtained. — An absent defendant, against whom a decree has been made, cannot appeal from the decree. His only remedy is that provided by statute. The mode of relief provided by statute is for the defendant to appear in the courtwhich pronounced the decree and petition to have the error complained of corrected. Barbee v. Pannill, 6 Gratt. 443, and foot-note; Lenows v. Lenow, 8 Gratt. 349, 352, and foot-note; James River, etc., Co. v. Littlejohn, 18 Gratt. 71; Higginbotham v. Hazelden & Rohbrough, 3 W. Va. 19; Grinnan v. Edwards, 5 W. Va. 114; Vance v. Snyder, 6 W. Va. 33; Newman v. Mollohan, 10 W. Va. 505; all citing the principal case as authority on the subject.
      But, though the absent defendant has no right by reason of the statute to appeal, not having sought his rehearing in the court below, yet a code-fendant, who has appeared, can nevertheless appeal before such rehearing has .been sought, from a joint decree against him and the nonresident defendant, who has not been served with process or appeared; and such appeal necessarily brings under review the propriety1 of the whole decree, and devolves upon the court the duty of correcting and reversing it, if erroneous, in favor of both the nonresident defendant who has not appeared, and the defendant who has. Lenows v. Lenow, 8 Gratt. 352.
      See further, monographic note on “Appeals.”
    
   «-TUCKER, P.

There is no error in these proceedings of which the defendant ’Platt can avail himself. Having submitted to a decree against him as an absent defendant, the statute leaves him but one remedy. That remedy is the right to appear and file his answer, and proceed to have the cause reheard, and the decree rescinded, if, after hearing, it shall prove to be erroneous. The appellant, then, having instituted his proceeding according to the statute for rescinding the original decree, cannot, at the same time, arraign it by proceeding by appeal in this court. The correctness of the original decree is thus out of the case, and the only question which the appellant can raise is whether, before the cause is prepared for a rehearing, the absent defendant has a right to demand that the decree already made should be set aside. I think not. Upon his petition to rehear the cause, he may, on giving security for costs only, file his answer, to which the plaintiff may reply ; and issue may be joined, witnesses examined, and other proceedings, decree and execution had, as may be just and right in the cause. To rescind the former decree before the cause is matured for rehearing, would be to adjudge first and hear afterwards. The practice would moreover be most mischievous in many respects. Whether -the attached effects, or the effects in the hands of the garnishee, would or would not be discharged, it may not be necessary to decide. But if the decree be set aside upon filing the answer, then it would seem to follow that all the proceedings under it must be set aside also ; and thus the sale of the attached effects, the payment by the garnishee, and the receipt of his demand by the plaintiff, may be vacated at any time within seven years after the decree, although, upon the rehearing, it may turn out that the first decree is unassailable. This would not only be without the sanction of the statute, but in conflict with the general principles as to bills of «review and petitions for rehearing, that such bill or petition does not prevent the execution of a decree, and money decreed must be paid before the bill is filed, though it may afterwards be ordered to be refunded. Mitford’s Plead. 79, 80 ; Hinde58, 59. In this regard, there is no difference between reviewing and rehearing, though in both a discretion may be exercised in suspending such parts of a decree as if once performed would place the defendant beyond the relief of the court. Ibid. The court therefore very properly declined, at this stage of the cause, to set aside the first decree ; that being to be done after a rehearing only. The appeal is therefore again premature, and the order of the circuit must accordingly be affirmed.

The other judges concurring, order affirmed.  