
    *Goolsby & als. v. Strother, Comm’r.
    
    June Term, 1871,
    Wytheville.
    I. Judgments by Default — Errors—Appellate Proceed*, ings. — A judgment slating that the defendants were solemnly called and not- appearing:, on motion, &c., is a judgment by default; though it is stated at the foot of the judgment that on motion of the defendants the execution on this judgment is suspended for sixty days, upon the execution of a suspending hond, &c.; and a supersedeas to this judgment will he dismissed as improvidently awarded if allowed "before a motion is made in the court below, or to the judge, .to correct it.
    2. Forthcoming Bonds — Notice—Statute.—The act of May 28,1870, entitled an act to prevent the sacrifice of property at forced sales, acts of 1869-70, ch. 120, p. 162, does not require three months’ notice of a motion on a forthcoming bond, where the bond was forfeited before the passage of the act.
    This was a supersedeas to a judgment upon a forthcoming bond rendered in the Circuit court of Smythe county, upon the motion of Wade D. Strother, commissioner for John N. Hull, against Robert Goolsby, V. G. Morgan and others. The notice of the motion was for a judgment on'the bond on the 13th day of June 1870, and service of the notice was acknowledged by the parties on the 14th and 16th of May 1870. The bond bore date the 1st of September 1869. The judgment was as follows : It appearing that the defendants have had legal notice of this motion, they were solemnly called, and not appearing, on motion of the plaintiff, by his attorney, it is considered that the plaintiff recover against the defendants the sum of $16,566.90, the penalty of said bond, to be discharged by the payment of $8,283.45, with legal interest from the 1st of September 1869 till payment, and his costs of this motion.
    *'On motion of defendants, the execution on this judgment is suspended for sixty days, upon the execution of a suspending bond, with good security in the penalty of $500, conditioned according to law.
    After this judgment was rendered, viz : August 16th, 1870, it was agreed by counsel that the note upon which the original judgment was obtained, and upon which the forthcoming bond in this case was given, was a contract made prior to the year 1865. The defendants applied to this court for a super-sedeas to the judgment, which was awarded.
    Richardson and Jno. A. Campbell, for the appellants.
    o Gilmore, for the appellee.
    
      
       For monographic note on Statutory Bonds, see end of case.
    
    
      
       Judgments by Default — Definition of — Statute.—All judgments, whether in common-law actions or on motions under some statute, where there has been no appearance by the defendant (whether legally summoned or not) are judgments by default, within the meaning of Code 1860, ch. 181, §§ 5 and 6 (Code 1849, ch. 181, §§ 5 and 6; Code 1887, §§ 3451, 3452); Davis v. Commonwealth, 16 Gratt. 134.
      This proposition was sustained by the principal case; Goolsby v. St. John, 25 Gratt. 159, 160; Holliday v. Myers, 11 W. Va. 298; Adamson v. Peerce, 20 W. Va. 61; Smith v. Knight, 14 W. Va. 758; Watson v. Wigginton, 28 W. Va. 546; State v. Slack, 28 W. Va. 375; Higginbotham v. Haselden, 3 W. Va. 269; Staunton, etc., Co. v. Haden, 92 Va. 205, 23 S. E. Rep. 285; Brown v. Chapman, 90 Va. 176, 17 S. E. Rep. 855.
      But it was held in West Virginia that if the defendant in such action or motion has appeared, though he subsequently withdraws his plea of d ef ence, and the plaintiff either proves his cause and thereupon obtains his judgment, or he afterwards obtains his judgment by the confession of the defendant, such judgment in neither of these cases is a judgment by default within the meaning of this statute. Watson v. Wigginton, 28 W. Va. 546; Holliday v. Myers, 11 W. Va. 297, 298; Stringer v. Anderson, 23 W. Va. 485.
      Decree on Bill Taken for Confessed. — In Watson v. Wigginton, 28 W. Va. 546, the court said that while there had been no conflict in the Virginia or West Virginia decision as to what is a judgment by default within the meaning of the statute under discussion, that the West Virginia decision had not been harmonious as to what is a ‘-‘decree on a bill taken for confessed” within the meaning of the. statute.
      In Gates v. Cragg, 11 W. Va. 306, where a demurrer had been filed by the defendant and overruled, and the defendant failed to answer the bill or further dispute in any manner plaintiff’s claim, the court decided that the decree rendered in the cause was not a decree on a bill taken for confessed within the meaning of the statute, and therefore, it could not be corrected b3r the court below on motion under this statute; but it could be reversed or corrected by the appellate court though no motion had been made in the court below.
      In Watson v. Wigginton, 28 W. Va. 548, the court said that Gates v. Cragg, 11 W. Va. 300, had gone too far in holding that no' decree can in any case be regarded as a “decreetaken"on abillfor confessed” where the defendant has demurred and the demurrer has been overruled, and that the decision in that case in going to this extent had since been overruled in the case of Steenrod v. The Railroad Company, 25 W. Va. 133. The court after a discussion of these last two named cases decides that the general principles announced in Steenrod v. The Railroad Company are correct but says that to avoid mistakes they should be to some extent modified. The court then proceeds to lay down the true construction of §§ 5 and 6, ch. 134 of the Code (same as §§ 5 and 6, ch. 181, V. C. 1860), so far as they prohibit an appellate court from entertaining an appeal because of an error in a decree on a bill taken for confessed, until after a motion to reverse or annul such decree has been made and overruled by the court below or by the judge thereof in vacation either in whole or in part.
      Judgments by Default — Errors—-Appellate Proceedings. — If a party obtains a supersedeas to a judgment by default, before applying to the court in which the judgment was rendered, or the judge thereof, to correct the errors of which he complains, his supersedeas will he dismissed as improvidently awarded. Davis v. Commonwealth, 16 Gratt. 134. This proposition is supported in the principal case and has been approved by subsequent cases citing the principal case, or Davis v. Commonwealth, 16 Gratt. 134, or both, as authority. See Watson v. Wigginton, 28 W. Va. 543, et seq.; Adamson v. Peerce, 20 W. Va. 61; Smith v. Knight, 14 W. Va. 758 et seq.; Higginbotham v. Haselden, 3 W. Va. 269. See also, Saunders v. Griggs, 81 Va. 511; foot-note to Goolsby v. St. Johns, 25 Gratt. 146.
      Decrees on Bill Taken for Confessed — Errors—Appellate Proceedings. — The above laid down proposition holds for “decrees on bills taken for confessed’’ as well as for judgments by default. See Dickinson v. Lewis, 7 W. Va. 676; Steenrod v. Railroad Company, 25 W. Va. 137; Watson v. Wigginton, 28 W. Va. 546 et seq.; Baker v. West, etc., Co., 6 W. Va. 196; Hartley v. Roffe, 12 W. Va., 420; Hill v. Bowyer, 18 Gratt. 365.
    
   MONCURE, P.,

delivered the opinion of the court.

The Code, chapter 181, sections 5 and 6, provides, among other things, as follows, to wit: (omitting such portions of the language as are not pertinent to this case or not material to be stated).

§5. The court in which there is a judgment by default, or a decree on a bill taken for confessed, or the judge of< said court in the vacation thereof, may on the motion "reverse such judgment or decree for any error for which an appellate court might reverse it if the following section was not enacted, and give such judgment or decree as ought to be given. Every such motion shall be, after reasonable notice to the opposite party, his agent or attorney, in fact or at law, and shall be within five years from the date of the judgment or decree.

§ 6. No appeal, writ of error or supersedeas shall be allowed by an appellate court or judge, for any matter for which a judgment or decree is liable to be reversed on motion as aforesaid, by the court which rendered it or the judge thereof, until such motion be made and overruled in whole or in part.

The judgment to which the supersed-eas was a warded*in this case,is a judgment by default. It is a judgment upon a motion on a forthcoming bond, and is in this form: “It appearing that the defendants have had legal notice of this motion, they were solemnly called, and not appearing, on motion of the plaintiff by his attorney, it is considered that the plaintiff recover,” &c.

It is stated at the foot of the judgment, that “on motion of defendants, the execution on this judgment is suspended for sixty days, upon the execution of a suspending bond with good security in the penalty of five hundred dollars, conditioned according to law.” This may show, or tend to show, that the defendants were present, in person or by attorney, when the judgment was rendered. But it does not show, nor tend to show, that the judgment was not by default; that the defendants made any defence in the court below. It shows the contrary ; that instead of making defence in that court, they intended to make it in an appellate court.

There is also in the record a statement to this effect, purporting to be signed by the counsel of the defendant in error : “It is agreed by counsel, that the note upon which the original judgment was obtained upon which the forthcoming bond in this case was given, was a contract made prior to the year 1865.” But this paper bears date August 16, 1870, long after the judgment was rendered, and of course can have no effect upon the question as to 'whether the judgment was by default. It was probably signed about the time the supersedeas was applied for, and for the purpose of being made a part of the record in the appellate court. Whether it was signed before or after judgment, it cannot show that the judgment was not, what it conclusively appears on its face to be, a judgment by default.

It necessarily follows, from what has been said, that the supersedeas in this case must be dismissed, as having been improvidently awarded.

As to the case of Beale v. Wilson, &c., 4 Munf. 380, to *which we have been ref erred in ref erence i o this question, it is sufficient to say, that it was decided long before the provisions of the Code before mentioned existed, and of course it does not apply to this case, whatever may be the meaning and effect of the decision.

While it is necessary to dismiss the super-sedeas, we yet deem it proper to state, with a view of preventing further litigation between the parties, that we have considered the assignment of error contained in the petition, and do not think it sustainable. We would have, therefore, to affirm the judgment if we had jurisdiction of the case in its present situation. We would have to affirm it on this ground, if no other, that according to the true construction of the act approved May 28, 1870, entitled “an act to prevent the sacrifice of personal property at forced sales” (Acts of Assembly 1869-70, ch. 120, p. 162), we think that three months" notice of a motion on a forthcoming bond is not required by the act in any case where the bond was forfeited before the passage of the act ; as the bond in this case was. There are other grounds on which the judgment might probably be affirmed, but it is unnecessary to state them.

The supersedeas is therefore dismissed with costs.

The judgment was as follows :

The court is of opinion, for reasons stated in writing and filed with the record, that as the said judgment is by default, and it does not appear that any motion has been made to the said Circuit court, or the judge of said court in the vacation thereof, to reverse such judgment in pursuance of the Code, chapter 181, section 5 ; the said writ of supersedeas, according to the next section, 6, was improvidently awarded, and must, therefore, be dismissed. But, for the piirpose of avoiding unnecessary delay and expense to the parties, it seems to be proper to state that the court has considered the question presented by the petition, and argued by the counsel in *this case, and is of opinion, that there is no error in the said judgment; and the court would have to affirm the said judgment but for its being premature to do so, under the provisions of the Code aforesaid. Therefore, it is considered and ordered that the said writ of error be dismissed, and that the plaintiffs in error pay to the defendant in error his costs by him about his defence in this behalf expended. Which is ordered to be certified to the said Circuit court of Smythe county.

Supersedeas dismissed.  