Moore v. Lipscombe

Citations

• 82 Va. 546
• 1886 Va. LEXIS 71

Syllabus

<p>1. Equitable Jurisdiction and Belief—Judgment at law.— Belief in equity will always be granted where failure to defend at law resulted from the acts or representations of the opposite party, or his agents, or from fraud, surprise, accident, or other adventitious circumstance, beyond complainant’s control. Dey v. Martin, 78 Va. 1.</p> <p>2. Idem—Idem—Case at bar.—M. brought assumpsit against L. and filed copy of account, which was served with summons on L. At next term there was judgment by default. L. was absent from the State, and made no defence, having, on being so served, seen M.’s attorney, told him he was about to leave the State, asked him if the case would be tried at the ensuing term, and been informed by him that he, L., might rest assured that there would be no trial of the case at that term as he was incapable, by reason of an accident, to attend the court. L. obtained an injunction to the judgment. Upon hearing an issue was directed to ascertain the amount, if any, due M. from L. On appeal—</p> <p>Held :</p> <p>The case was a proper one for equitable relief, and the direction of the issue was the proper course. Wynne v. Newman, 75 Va. 815. But as the decree complained of was not one from which, under Code 1873, chapter 178, section 2, an appeal properly lies, the appeal should be dismissed.</p>