Gullett v. Housh

Dewey, J.

This was a bill in chancery by the heirs of John Gullett, deceased, against his administrator, for the recovery of the distributive shares of his estate.

A. C. Griffith, for the plaintiffs. H. P. Thornton, for the defendant.

The suit was commenced in the Probate Court of Jackson county at the January term, 1832. Process was regularly served upon the defendant; and at the March term, 1832, the parties having appeared, the defendant had leave to answer ten days before the next succeeding term. At that term, the cause was continued on the application of the defendant, no answer having been put in. At the next term, November, 1832, a final decree for 165 dollars and 45 cents .was rendered against the defendant for want of an answer. At the next term after the rendition of the decree, the defendant moved the Court to set the same aside, and to suffer him to file his answer. The motion was granted, and the answer filed. The complainants excepted.

The cause then progressed until the May term, 1835, when a final decree was rendered in favour of the defendant for 77 dollars and 24 cents and costs. To reverse this latter decree is the object of this writ of error.

By our statute regulating the practice in chancery, nonresident defendants, infants, &c. are permitted to open decrees, on motion, at a term subsequent to that on which they were rendered; but this provision does not extend to the present case. By the English practice, a decree, after it has been regularly enrolled, cannot be opened by motion. A bill of review is necessary. 2 Madd. Pr. 454.—1 Ves. jun. 93. And it has been held by the Supreme Court of the United Stales, that the Circuit Courts have no power to set aside their decrees in equity, on motion, after the term at which they are rendered. Cameron v. M'Roberts, 3 Wheat. 591 .

Such, we think, is the general rule applicable to the Courts of this state, and that, therefore, the Probate Court erred in setting aside the final decree rendered in this cause at the November term, 1832, and suffering the defendant to answer.

Per Curiam.

The decree for the defendant rendered at the May term, 1835, is reversed, and the proceedings subsequent to the decree for the complainants, rendered at the November term, 1832, is set aside, with costs. To be certified, &c.