3 W. Va. 676 | W. Va. | 1869
delivered the opinion of the eourt.
There is error in the decree of the 4th of October, 1860 :
1st. Because the period, of one month allowed by law for the defendants to appear, after the execution of the order of publication, had not expired before the first day of the¡
2d. Because it is against infants without a guardian ad litem, and it cannot be presumed that any such guardian, was appointed, in the absence of proof that the records were lost or destroyed.
The objection to the decree of the 13th of December, 1865, as being without authority because rendered at a special term of the court, instead of a regular term, is not well taken, because by the statute, — Code of Virginia, 1860, chapter 158, section 33, — any civil cause might be tried which could lawfully have been, but was not tried at the last preceding (regular) term, that was or should have been held. The regular term that should have been held on the 16th of October, 1865, would have had the right to have tried the cause and confirmed the said sale; and the statute is, that the special term may do that which might have been lawfully done, but was not done, at the preceding regular term.
There was error in the decree of the 6th of December, 1867, in dismissing the petition to open and rehear both of said preceding decrees.
Because of the error in those decrees as above stated, the said decrees, therefore, of October 4th, 1860, of December 13th, 1865, and of December 6th, 1867, will have to be reverted, with costs to the appellants, and the cause remanded for further proceedings to be had therein, in the court below.
This case—McDonald et al. vs. Campbell,— was dependent on the case of McDonald and others vs. George McDonald, was heard in connection with that case, and must stand or fall with it. That having been reversed, this must be also, with costs to the appellants, the injunction dissolved, and the bill dismissed.
Decrees reversed.
