
    *Moseley v. Cocke.
    February, 1836,
    Richmond.
    (Absent Cabell, J.)
    Decrees — Persons Not Parties to Suit — Effect.—Upon a bill in chancery against several defendants, process issues against one not made a party defendant in the bill, and against whom there is no allegation therein, and no relief prayed, and a decree is made against him by default, and against the defendants, by some of whom an appeal is taken to the court of appeals, where the decree is reversed as to the appellants, and in all things else affirmed; Held, the decree is a mere nullity as to the party who was not named in the bill, and against whom the bill contained no allegation and prayed no relief.
    A bill was exhibited in the superiour court of chancery of Richmond, by John Cocke and Ann his wife and Elizabeth Ronald, creditors of William Bentley the elder, ag-ainst William Bentley the younger, and other children of William Bentley the elder, and William Coleman and other purchasers claiming under their co-defendants the Bentleys, for the purpose of having certain conveyances of lands of William Bentley the elder to his children, set aside, as voluntary, fraudulent and void, as against the plaintiffs his creditors. William Moseley was a purchaser of part of the lands conveyed by William Bentley the elder to his children, the conveyance of which it was the object of the bill to set aside; but he was not made a party defendant by the bill, nor was there any allegation in it, nor any relief prayed, against him. Yet a subpoena was sued out and served upon Moseley, to answer the bill; and he not appearing, it was followed by a decree nisi, which was also served upon , him: and upon the hearing of the cause, the bill was taken pro confesso as to him, and a decree made (interlocutory as Moseley contended, final as the plaintiffs insisted) *which affected Moseley’s rights, as well as those of the children of William Bentley the elder, and Coleman and the other defendants, purchasers under the conveyances impugned by the bill. William Bentley the younger and Coleman appealed from the decree to this court; which reversed the decree so far as it affected the rights of Coleman, and in all things else affirmed it. The case is reported by the name of Coleman v. Cocke, 6 Rand. 618.
    After the cause went back to the court of chancery, the plaintiffs commenced supplemental proceedings against sundry persons holding the lands conveyed by William Bentley the elder to his children under purchases from them, who were not defendants to the original bill, and not mentioned in the proceedings or in the decree upon it. Still, Moseley was not named in the pleadings ; the plaintiffs claiming under the original decree by default against him. While these new proceedings were pending, Moseley presented an answer to the original bill, controverting the claim of the plaintiffs to relief against him, and asked leave to file it; and he filed affidavits to explain the reason why he had not appeared and put in an answer earlier. The chancellor refused to give him leave to file his answer, because the decree by default against him had been affirmed by the court of appeals, and because his reasons for not having answered earlier were insufficient. Moseley appealed to this court.
    Robinson, for the appellant.
    Johnson, for the appellee.
    
      
      He was prevented by sickness, from sitting in this and several following cases.
    
    
      
      Decrees — Persons Not Parties to Suit — Effect.—A decree is a mere nullity as to persons not named as party in the bill, and against whom no allegations are made and no relief is asked. Cronise v. Carper, 80 Va. 681, citing Moseley v. Cocke, 7 Leigh 224.
      And in Chapman v. Pittsburgh & S. R. Co., 18 W. Va. 195, it is said: “If a person is not named in the bill and no allegation with reference to him appears therein, the naming of him in the summons does not make him a party to the suit, although he may have been served with process; and though named in the prayer of the bill and in the summons and served with process, yet if there is no allegation in the bill with reference to him, he is not a party to the suit, because there is nothing in the bill to which he could answer, and his rights, if he has any, are not to be adjudicated without giving him an opportunity to defend his interest. Moseley v. Cocke, 7 Leigh 224.” To the same effect see, citing the principal case. James River & K. Co. v. Littlejohn, 18 Gratt. 81; Ogden v. Davidson. 81 Va. 759, 761; Newman v. Mollohan, 10 W. Va. 503; Keystone Bridge Co. v. Summers, 13 W. Va. 506; McCoy v. Allen, 16 W. Va. 730; Renick v. Ludington, 20 W. Va. 536, 539; Rickard v. Schley. 27 W. Va. 633; McNult v. Trogdon, 29 W. Va. 469, 2 S. E. Rep. 329; Shaffer v. Fetty, 30 W. Va. 270, 272, 4 S. E. Rep. 290, 291; McKay v. McKay, 33 W. Va. 734, 11 S. E. Rep. 217; Cook v. Dorsey, 38 W. Va. 199. 18 S. E. Rep. 469; Shinn v. Board of Education, 39 W. Va. 506, 20 S. E. Rep. 607. See also, Bland v. Stewart, 35 W. Va. 518, 14 S. E. Rep. 215; Bland v. Wyatt, 1 H & M. 543; Henderson v. Henderson, 9 Gratt. 394: Strother v. Mitchell, 80 Va. 149; Strother v. Xaupi. 80 Va. 159. See generally, monographic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.
    
   TUCKER, P.,

delivered the opinion of the court. There is no error in the refusal to .permit the aopellant Moseley to file his answer in this case. No person has a right to file an answer in any suit in which he was not a party. The question then is, was Moseley a party here, *or not?

It cannot be fairly questioned, that the subpoena and conditional decree were both served upon him. But he is not named in the bill; there is ño allegation any where in it, which bears upon, or in any manner refers to him, nor is any decree prayed against him, either in terms, or in the usual-language praying a decree, “against all persons unknown, and who may be hereafter discovered claiming under or combining with the defendants.” It is a distinct charge against other persons, and it prays distinctly a decree against them for certain lands. Moseley, therefore, seéms to me not to be a defendant, in any fair sense of the term. No process is prayed against him by the bill; and, therefore, according to the authorities, he was not a defendant; and there being no charge against him and no decree prayed, he had nothing to defend. The bill, it was true, was taken for confessed against him. But, as it charged nothing, nothing was confessed, and therefore nothing could be decreed. In short, a decree against one not named in the bill, and nowise comprehended in its general allegations, is a ntillity. He is not bound by it, and has, therefore, no necessity to contest it, or answer to it. If he has been improperly named in the process, the plaintiff may indeed be subject to his action for vexing him by that service, when he was m fact not a party ; but ne cannot file his answer where nothing is demanded of him. It is a solecism to speak of his answering a bill, in which he is not named, and in which he does not even by inference appear to have an interest or concern. The court is of opinion, therefore, that the order be affirmed; stating, however, as the ground of affirmance, that the appellant was not a party to the suit, and was not bound by the decree, and therefore was under no necessity to answer the bill, and had no right to insist on filing his answer.

Decree for that cause affirmed.  