which a decree has been made upon taking a bill pro confesso may be reheard.49 The court is less indulgent in opening such a decree than in setting aside one obtained upon a default at the hearing.50 The proceedings under a decree pro confesso are the same as those under other decrees made upon a hearing. If the decree directs a reference to a master, the reference must be proceeded with in the master's office in the same way as any other reference.51 A bill taken pro confesso cannot be read before the master as evidence of the state of the account.52

The necessity of a decree setting forth the manner in which the defendants have been served with process is somewhat confused. In some jurisdictions it is held that where a decree recites on its face that all the defendants have been duly served with process, and in the absence of anything in the record to the contrary, the presumption is conclusive that the recital is true, on the principle that, when a court of general jurisdiction has pronounced judgment, its adjudication shall be as conclusive on the question whether the party was duly notified as on any other point necessary to the proper determination of the cause.53 Thus, in Tennessee, it is held that the recital in a decree pro confesso is sufficient in stating that "publication was made according to law," without giving details.54 In other jurisdictions it is held that a decree pro confesso, where there has been no entry of appearance, must state the facts necessary to show that publication has been made agreeably to the rules of practice.55 The rule in Illinois has been the subject of much discussion by the courts. It is held that, in a direct proceeding to

491 Barbour, Ch. Pr. 370; Took v. Clark, 1 Dickens, 350.

50 Knight v. Young, 2 Ves. & B. 184.

511 Barbour, Ch. Pr. 372.

52 Dominicetti v. Latti, 2 Dickens, 588.

53 Moore v. Green, 90 Va. 181, 17 S. E. 872; Ferguson's Adm'r v. Teel, 82 Va. 690.

54 Gilliland v. Cullum, 6 Lea (Tenn.) 521; Robertson v. Winchester, 85 Tenn. 171, 1 S. W. 781.

5 Keiffer v. Barney, 31 Ala. 192. See Chilton v. Alabama Gold Life Ins. Co., 74 Ala. 290.

review a decree, the recital in the decree that the requirements of the law have been complied with cannot prevail as against affirmative proof in the record to the contrary.56

$152. Forms of orders pro confesso (as used in Cook county, Illinois).

[Title of court and cause.]

It appearing to the court that due personal service of summons has been had on the defendant, A. B., at least ten days before the first day of this term, being the return day of said summons, on the motion of complainant's solicitor,

It is ordered by the court that the defendant above named be, and he is hereby, required to plead, answer, or demur, instanter, to the bill of complaint filed in this cause; and no plea, answer, or demurrer, or other matter of defense being interposed herein by the said defendant, and he being now here three times solemnly called in open court, comes not, nor does any person for him, but herein he makes default, which is, on motion, ordered to be taken, and the same is herein entered of record.

And it is ordered that the said bill of complaint be, and the same is hereby, taken pro confesso against the said A. B., for want of his answer thereto.

-Service by publication.

[Title of court and cause.]

It appearing to the court that the defendant, Richard Roe, has been duly notified of the pendency of this cause, by publication, and by mailing the same to him, pursuant to the statute in such case made and provided, on motion of complainant's solicitor,

It is ordered, etc.

56 White v. City of Chicago, 188 Ill. 392, 58 N. E. 917; Law v. Grommes, 158 Ill. 492, 41 N. E. 1080; Reddick v. State Bank, 27 Ill. 145; Bradley v. Drone, 187 Ill. 175, 58 N. E. 304. In case of collateral attack, all reasonable presumptions are in favor of the jurisdiction of the court, and the law will presume, prima facie, at least, from the findings of the court, that such was the fact. Thus, where an administrator's order of sale recites that all of the defendants have been duly served with process, as the law requires, more than the lawful time prior to the sitting of the court, it will be presumed on collateral attack, even if the summons in the record is void, and the certificate of publication defective, that notice and proper summons were issued and served, and that proper publication was had, and a correct certifi

Where there is an appearance.

[Title of court and cause.]

It appearing to the court that the defendant, A. B., has filed his appearance herein, and has failed to answer the bill of complaint herein, on motion, etc.

On withdrawal of answer.

[Title of court and cause.]

On motion of the solicitor for the defendant, A. B.,

It is ordered that leave be, and the same is hereby, given the said defendant to withdraw his answer heretofore filed in this cause, and the same is hereby withdrawn.

And it appearing to the court that the defendant has failed to answer the bill of complaint in this cause, on motion of complainant's solicitor, etc.57

153. Effect of taking a decree pro confesso.

The defendant, as against whom a bill has been taken as confessed, still has a right to be heard upon the form of the decree, and to appeal from it.58 A decree pro confesso precludes the defendant from denying the sufficiency of the proof, but it is open to him, on error, to show that the averments of the bill do not justify the decree.59 An order pro confesso is an admission only of the facts which are well pleaded, and cannot aid or sup

cate of notice and of publication was before the court. Bradley v. Drone, 187 Ill. 175, 58 N. E. 304. See Robertson v. Winchester, 85 Tenn. 171, 1 S. W. 781. But in a direct, not a collateral, attack upon the decree, the same recital in the decree of compliance with the statute cannot prevail as against the affirmative proof in the record to the contrary. White v. City of Chicago, 188 Ill. 392, 58 N. E. 917; Law v. Grommes, 158 Ill. 492, 41 N. E. 1080.

57 For form of order upon a judgment creditors' bill, taken pro confesso, under the New York chancery practice, see Stephenson v. Parkins, 2 Edw. Ch. (N. Y.) 218.

58 Blanchard v. Cooke, 144 Mass. 207, 11 N. E. 83; Butterworth v. Hill, 114 U. S. 128. For rights of heirs and personal representatives after default and death of defendant, see Christie v. Bishop, 1 Barb. Ch. (N. Y.) 105. For rights of purchaser pendente lite from defendant after default, see Watt v. Watt, 2 Barb. Ch. (N. Y.) 371.

59 Gault v. Hoagland, 25 III. 266; Ohio Cent. R. Co. v. Central Trust Co. of New York, 133 U. S. 83.

60

plement defective averments." It is not evidence as an admission of the allegations of the bill, if the bill is afterwards dismissed.61 Where a defendant suffers a decree to be taken for confessed against him, he cannot, in the appellate court, take advantage of the statute of limitations, though it appear on the face of the bill that the time prescribed by statute as a bar had elapsed.62

154. Effect of decree pro confesso where there is no personal service.

Every independent government is at liberty to prescribe its own method of judicial process, and declare by what means parties shall be brought before its tribunals.63 The manner in which a resident defendant shall be notified of a suit instituted against him, so as to authorize a personal decree against him, is a matter over which the law-making power of a state has absolute control.64 Thus it was held that the law of Ohio authorizing a personal judgment against a defendant upon whom process had been served by a copy left at his dwelling, he having absented himself to avoid service, could not be held invalid in Kentucky, as between residents of Ohio.65 But a decree in personam against a person who is not a resident of the state where he is sued, and who has not been personally served with process or appeared, is held void both in the jurisdiction where rendered and in any other jurisdiction.

60 McDonald v. Mobile Life Ins. Co., 56 Ala. 468.

61 Garrett v. Ricketts, 9 Ala. 529.

62 Patterson v. Ingraham, 23 Miss. 87.

63 Mackay v. Gordon, 34 N. J. Law, 286; Hess v. Cole, 23 N. J. Law, 116; Mutual Life Ins. Co. v. Pinner, 43 N. J. Eq. 52, 10 Atl. 184.

64 Biesenthall v. Williams, 1 Duv. (Ky.) 329; Mackay v. Gordon, 34 N. J. Law, 286; Hess v. Cole, 23 N. J. Law, 116; Mutual Life Ins. Co. v. Pinner, 43 N. J. Eq. 52, 10 Atl. 184; Corby v. Wright, 4 Mo. App. 443.

65 Biesenthall v. Williams, 1 Duv. (Ky.) 329.

66 Pennoyer v. Neff, 95 U. S. 714; Freeman v. Alderson, 119 U. S. 185; Needham v. Thayer, 147 Mass. 536, 18 N. E. 429; Eliot v. McCormick, 144 Mass. 10, 10 N. E. 705; McGavock v. Clark, 93 Va. 810, 22 S. E. 864; Barrett v. McAllister, 33 W. Va. 738, 11 S. E. 220.

§ 155. Decrees by confession against infants and other persons under disability.

The court will not take a bill for confessed against infant defendants under any circumstances.67 A decree against infants must be based upon full proof, even though their guardian ad litem confessed the cause of action.68 It is said that it is doubt

ful whether a bill can be taken for confessed against a person under disability.69

§ 156. Opening orders and decrees pro confesso.

Applications to set aside orders and decrees pro confesso are addressed to the discretion of the court, upon the circumstances of each case, and will, as a general rule, be granted, if not productive of injurious delay, and the applicant has not been guilty of culpable negligence.70 Where a decree pro confesso is entered on a bill fatally defective in its jurisdictional averments, it is the duty of the court, on its attention being called to the defect, to open the default, and, if it gives leave to amend the bill, to allow the defendant time to answer.71 The power to open such a decree should not be exercised upon a mere desire to let in the defense on the merits. The facts established must show deceit, surprise, or irregularity in obtaining the decree, and that the defendant has acted bona fide, and with reasonable diligence, and has a meritorious defense, and the facts constituting such defense must distinctly and satisfactorily appear."

67 Mills v. Dennis, 3 John. Ch. (N. Y.) 367; Daily's Adm'r v. Reid, 74 Ala. 415; Enos v. Capps, 12 Ill. 255; Chaffin v. Kimball's Heirs, 23 Ill. 36; Tucker v. Bean, 65 Me. 352; Wells v. Smith, 44 Mies. 296; Hazard v. Durant, 12 R. I. 99. See supra, § 11; post, §§ 177, 318, 709.

68 Cost v. Rose, 17 Ill. 276; Reddick v. State Bank, 27 Ill. 145; Quig ley v. Roberts, 44 Ill. 503.

69 Foster, Fed. Pr. (3d Ed.) § 103; Hazard v. Durant, 12 R. I. 99. 70 Gwin v. Harris, Smedes & M. Ch. (Miss.) 528; Russell v. Waite, Walk. (Mich.) 31; Powell v. Clement, 78 Ill. 20; Dean v. Mason, 20 How. (U. S.) 198; Carter v. Torrance, 11 Ga. 654; Hall v. Lamb, 28 Vt. 85; Culver v. Brinkerhoff, 180 Ill. 552, 54 N. E. 585.

71 Nelson v. Eaton, 27 U. S. App. 677, 66 Fed. 376. See Davis v. Davis, 62 Miss. 818.

72 Stribling v. Hart, 20 Fla. 235.