Rust v. Lynch

Alvey, J., delivered the opinion of the Court. The original hill in this case was filed on the 12th of March, 1879, and the decree passed thereon, and which is sought to be vacated, bears date the 25th of September, 1879. The defendants, now appellees, were duly summoned to appear and answer the bill, and the return day of the subpoena was the 17th day of March, 1879. Consequently the defendants were in default and contempt for non-appearance, from and after the lapse of the March Term of Court, and were liable to be proceeded against in an ex parte form, as provided by the statute, Code, Art. 16, sec. 115; and, as it appears, they were so proceeded against, and they never appeared and offered to file an answer, as they were authorized to do by the statute, until more than three months after the final decree, and after execution thereon, when they filed their petition for the discharge of the enrolment, and for the vacation of the •decree, so that they might be let in to make what they ■allege to be a meritorious defence.

There is no charge or pretence of fraud or irregularity in obtaining the decree; but the sole ground of the application, as set forth in their petition, is, surprise to the ⁶³⁸ defendants in the failure or neglect of their solicitor to appear to the case, as he was authorized and had promised to do. There is no allegation whatever that there was any aclj or declaration of the plaintiff or his solicitor that misled or deceived the defendants or their solicitor. The application of the defendants was heard in the Court below upon the sworn allegations of the petition and answer ; and the most material allegations of the petition are flatly contradicted hy those of the answer. The affidavit of the defendants’ solicitor appears in the record, (though it does not appear how or by what authority it was introduced) in which he states that he believes he told one of the defendants at the time he was employed, which was before the defendants were summoned, that he would notify them when to come forward to attend to the suit; and that he afterwards forgot all about it.

But it must he recollected that the defendants, after they were summoned, were charged with the knowledge that they were required to appear, in obedience to the process of the Court, and not merely to employ counsel; and further, they must he charged with knowledge that, by the law, they were required to answer the plaintiff’s hill within a certain time, and that proceedings to final decree were authorized to be taken in default of appearance or answer. The defendants certainly knew that they had not answered the bill, and that they were liable to be proceeded against in default of answer, even if the appearance of their solicitor had been entered, as they allege they supposed it had been. If a decree could he vacated upon such ground as is here alleged hy the defendants, there would be little or no stability in decrees obtained upon ex parte proceedings authorized hy the statute; and instead of being a means of relief against the delay and neglect of defendants, the statute would furnish the ready mode of protracting the litigation beyond the time required to reach final hearing and decree in the ordinary course of proceeding. ⁶³⁹ The object of the statute under which the ex parte proceedings were taken, was, as declared in Oliver vs. Palmer & Hamilton, 11 G. & J., 426 , to provide a just and reasonably expeditious mode of obviating the delays and difficulties to which complainants were subjected by the neglect of defendants, and their disobedience to the mandates of the Court; and, as in that case held, no construction of the statute should he indulged that would either reward, or encourage, defendants in their contumacious neglect of the process of the Court when duly served upon them. Decrees are not lightly to be disturbed or