AMANDA E. TATE et al., Appellants, v. WILLIS W. EARLEY et al., Administrators, etc., Appellees.
HE-SUBMITTED FEBRUARY 17, 1911. DECIDED FEBRUARY 24, 1911.
Toliver, C. J., Wood and MeCants-Stewart, JJ.
Appellees not appearing, the judgment of the court below in this case is reversed and judgment ordered in favor of appellants.
Mr. Justice Woods delivered the opinion of the court:
Injunction—Appeal from Judgment. For a legal reason that will be assigned hereafter in this ruling, the court does not see its way legally clear, nor does it consider its duty to review the most voluminous records. Records of two courts and with proceedings held under four judges: to wit, Samuel P. Gross of the Court of Common Pleas, Joseph R. Moore of the same court, W. P. Kennedy of the Monthly and Probate court, and finally A. J. Mathews, judge of the Court of Common Pleas, Montserrado County; the former judges were of the courts of Grand Bassa County, Judge Mathews was detailed to hold the session of the court at the Grand Bassa County of March term, 1909; and the case was concluded adversely to the appellant in October, 1909.
The case being brought into court by a writ of injunction necessarily puts the case in the equity division of the court. Judge Mathews was the last judge to sit on the case of injunction, which was September, 1909, but owing to the fact that three weeks for law business had ended, equity was in place; hence the judge’s decree was given in the month of October, 1909.
The decree being adverse to appellant, she sought remedy by petitioning to the Supreme Court for a writ of certiorari that the entire proceedings of the case be so reviewed that she enjoy the benefit of substantial justice according to the facts as recorded in the case—facts based on statutory law as well as common law.
The case was duly entered upon the writ of certiorari being issued and returns made to the mandate, for the January term 1910. The Supreme Court did not sit, owing to the depletion of the bench occasioned by the illness and subsequent death of Chief Justice Z. B. Roberts; hence the case was continued to the January term; 1911.
Now, then, as to the legal reason given as already referred to, why the court does not review the case according to the records, the court says, that at the calling of the case at its present session, to which it was continued, the appellees did not answer in person nor by legal representative, whereupon the appellant by her counsel put in the following motion:
“The appellant in the above entitled cause, respectfully motions this court to grant her judgment by default in this cause, because at the calling of the case by this court, the appellees failed to answer either in person or by counsel.
Respectfully submitted;
T. W. HAYNES,
Counsellor at Law for appellant and plaintiff in certiorari.”
The court sustained the motion of plaintiff in certiorari and granted judgment by default; both under statutory law, and the common law.
And now proceeds to give final judgment as follows: The Supreme Court adjudges that the judgment of the court below is reversed, set aside, and made null and void; that plaintiff in certiorari is put in full possession of the estate of the late Thomas I. Tate, deceased,’ as representative of his heirs—Joseph H. Tate and Florence Tate; and further the court adjudges and orders that the defendant in certiorari pay all legal costs incurred in this action, and that the clerk of the Supreme Court is hereby ordered to issue a mandate to the judge below informing him of this judgment, and that he put the same into effect immediately.
[Mr. Justice McCants-Stewart took no part in the consideration or decision of this case.]
T. W. Haynes, for appellant. No one appearing to oppose.