138 S.E. 463 | W. Va. | 1927
This appeal is taken from the action of the circuit court of Kanawha county in sustaining defendant's motion to set aside, vacate and annual a final decree granting plaintiff the relief prayed for in her bill. *702
Summons issued January 19, 1926, returnable to February rules. At February rules plaintiff filed her bill (asking that a certain conveyance be cancelled and annulled, etc.), and a decree nisi entered. The bill was taken for confessed at March rules and set for hearing; and being matured and set for hearing as to said defendants at the next succeeding term of said court, and the defendants not having appeared or made defense, though duly served with process, the circuit court on June 5, 1926, entered a final decree. On the 17th day of July, 1926, the last day of said term, defendant Mary F. Sands moved the court to set aside, vacate and annul said final decree, and filed in support thereof her own affidavit, together with the several affidavits of E. L. Stone, attorney, and E. A. Stone, stenographer. These affidavits were to the effect that Mary F. Sands had employed E. L. Stone to represent her in the case; that she went to said attorney's office after February rules and that E. A. Stone went to see if a bill had been filed and returned with the report that it had not; that defendant called at said attorney's office after each succeeding rules and that E. A. Stone called said clerk's office to ascertain whether said bill had been filed, but that on each occasion, to-wit, February, March and April, 1926, they were advised by the clerk that the bill had not been filed, and, three rule days having passed, was advised by E. A. Stone that said suit was dead; that on the 3rd of June, defendant received a notice to take depositions on the 17th; and that on the 4th of June she visited E. L. Stone's office, etc. Plaintiff introduced evidence in the form of two affidavits, one of Sam Silverstein, attorney, and that of W. L. Price, clerk of the circuit court, which in effect were as follows: That the said bill had been filed and matured, as hereinbefore related, and that all rules were taken up on the bill and entered in the records of the clerk's office; that said bill was never removed from said clerk's office until June 4, 1926, and then only for the purpose of preparing the final decree entered herein; that it is improbable that any request or inquiry had ever been made at said clerk's office with respect to said bill prior to the entry of said final decree; that at no time prior to June 17, 1926, and after said final decree had been entered, did the defendant or counsel for the *703 defendant make any appearance in the suit or call upon or ask the plaintiff or counsel for the plaintiff for said bill, or a copy of same, or take any other interest in the proceedings. The affidavit of said attorney explained how said notice to take depositions had been inadvertently given by co-counsel.
But one question is raised: Has the defendant shown good cause, i. e., fraud, accident, mistake, surprise or some adventitious circumstances beyond her control and free from her neglect? Gainer v. Smith,
The decree of the circuit court will be reversed, and the decree of June 5, 1926, reinstated.
Decree reversed. *704