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The motion was fully argued at the March term of the court, but the case was retained for consideration until the August term, when the court held that by the fifth section of chapter 177, of the Code of 1873, the motion authorized by that section of the Code must be made before the judge in vacation, or the court in term, within five years from the rendition of the decree or judgment complained of; and if the motion comes within the seventh section of the act of 1866, yet more than five years had elapsed between. the date of the decree and the motion made on the 2d day of March term last past. The motion was therefore overruled, but without prejudice to the rights of the parties to seek relief in the cause, which was still pending in the court, in any legitimate mode, by petition, motion or otherwise, as they may be advised. And thereupon George II. Kendrick, and the other plaintiffs in the motion, applied to this court for an appeal; which was allowed.

Wm. H. Burns, for the appellants.

P. Hagan and Morrison, for the appellees.

STAPLES, J., delivered the opinion of the court.

The appellants moved the circuit court of Scott county, at the March term 1874, to reverse an interlocutory decree by default of the same court rendered on the 17th May, 1860. It appears that the notice upon which the motion was founded was served the 19th November, 1873. If the date of serving the notice be adopted as the true time, rather than the date of making the motion, and if the period provided for by the seventh section of the act of March 3d, 1866, VOL. XXVIII-82

1877. July Term.

Kendrick

& als.

V.

Whitney

& als.

1877. July

known as the stay law, be excluded from the compuTerm. tation, still the motion was not made in five years from the date of the decree of the 17th May, 1860. It was upon this ground the learned judge of the cirV. cuit court refused to entertain the motion, and not Whitney because in his opinion the decree of 1860 is correct.

Kendrick

&als.

& als.

The appeal in this case brings in review the correctness of that decision. The motion, it is insisted, was made under the fifth section of chapter 181, Code of 1860; and the question is as to the true interpretation of that section and the one immediately following. It is there provided, that the court in which there is a judgment by default, or a decree on a bill taken for confessed, or a judge of said court in vacation thereof, may on motion reverse such judgment or decree for any error for which an appellate court might reverse it, if the following section (which is the sixth) was not enacted, and give such judgment as ought to be given. It is further provided that every motion under that chapter (181) 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.

The sixth section provides that 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 or amended, on motion, as aforesaid, by the court which rendered it, or the judge thereof in vacation, until such motion be overruled in whole or in part.

There is no difficulty in regard to the proper construction of these two sections, as applied to final decrees by default. Under former laws, the limitation upon the right of appeal was five years. The same limitation was by analogy prescribed for motions

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under the fifth section just cited. The object of that section, as stated by Judge Allen, in Davis, sheriff, v. Commonwealth, 16 Gratt. 134, 137, was to save parties the delay and costs of an appeal to correct irregularities and formal errors, which seldom affect the merits of the controversy, and which would have been corrected at once by the court if pointed out. See also Hill et als. v. Bowyer et als, 18 Gratt. 364. As the party aggrieved could after the lapse of five years take no appeal from a final decree, it was proper to apply the same limitation in case of a motion which in such case is made a substitute for an appeal. All this is plain enough. The real difficulty is in respect to interlocutory decrees; as to which there is not and never was any limitation. An appeal may be taken from such a decree at any time, so long as the cause is pending in court. And whilst a bill of review to a final decree cannot be brought after three years, a petition to rehear an interlocutory decree is not limited by any statutory bar. Cases may be found in which the court has reheard a cause at the distance of eighteen years from the time the decree complained of was pronounced. In another case the court has refused to discharge an order for a rehearing, though at a distance of twenty-five years. Newland Chy., page 188. See also Cocke's adm'r v. Gilpin, 1 Rob. R. 20. Whether a rehearing shall be granted is said always to depend upon the sound discretion of the court upon all the circumstances of the case. Adams Eq., marg. 379: Land v. Wickham, 1 Paige R. 256.

I think it was not the design of the legislature, in enacting the sections already quoted, to abolish these long established rules of practice and proceeding in courts of equity; but to afford an additional remedy by motion in certain classes of cases to reverse or amend

1877.

July

Term.

Kendrick

V.

Whitney

& als.

1877. July Term.

Kendrick & als.

v.

a decree interlocutory or final. If the party aggrieved resorts to the motion allowed by the statute, he must commence his proceeding in five years from the date of the decree.

A motion is, necessarily to a great extent, a proWhitney & als. ceeding of an informal character. It is an application ore tenus addressed to the court by counsel. Under the statute it may be made even in vacation and upon notice to an agent or attorney. In many cases it is insufficient to bring before the court all the equities and matter proper to be understood by the court, and which may have arisen after the lapse of years. It was proper, therefore, to provide some limitation to such motions, even where the decree is purely interlocutory, and that limitation is fixed at five years.

But the remedy by motion, thus afforded by the fifth section, is not exclusive but cumulative. The party aggrieved may, if he pleases, still resort to his petition for a rehearing, even within the five years, for a petition is in effect a motion, and answers all the purposes of the latter under the statute. But if more than five years have elapsed since the date of the decree, the party is deprived of his statutory motion; but his remedy by a petition for a rehearing still remains. And there may be cases in which he might even still resort to his motion, according to the course of proceeding in the courts of chancery. Every one familiar with the practice in these courts is aware that both in England and Virginia errors in decrees are often corrected upon motion, especially where the decree is by default. Indeed there does not appear any very distinct line of demarcation between the cases in which applications of an interlocutory nature should be made by motion, and those in which they should be made by petition, the practice in this respect

being generally regulated by the circumstances of each case. 3 Daniel's Ch. Prac. 244; Newland's Ch'y, 185, 186; Moore v. Hylton, 12 Leigh 1, 26.

These rules of practice were not intended to be interfered with by the statute; the only alteration being, that when the decree is by default, the party aggrieved must proceed by motion, or by a petition for a rehearing, which is in effect a motion, before an appeal can be taken to this court.

Any other construction would involve incongruities in the practice never contemplated by the legislature. If the statute has abolished petitions for rehearing after five years, the effect will necessarily be, that no appeal can be taken from the interlocutory decree by default after that time. And yet the party aggrieved in such case has only to wait until there is a final decree, and then take his appeal, which necessarily brings in review all the proceedings, including the interlocutory decree. Where any such a decree adjudicates the principles of a cause, or directs the payment of money, or the title or possession of property to be changed, the policy is to allow an appeal without waiting for a final decree. If the defendant in such a case may wait until there is a final decree, and then take his appeal, no matter what may be the time elapsed between the interlocutory and final decree, why should he not be allowed to appeal from the interlocutory decree at any time before a final decree; and if he may appeal, why may he not petition for a rehearing, when the justice of the case requires it, whatever may have been the lapse of time, if in fact no final decree has been rendered. The policy of the law is to encourage petitions for a rehearing as cheaper and more expeditious than the expensive remedy by appeal; and the courts ought to give to the statute such an in

1877.

July Term.

Kendrick

& als.

V.

Whitney

& als.

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