murrer. Thereupon the plaintiff asked leave to amend her said. bill by inserting therein, on the 7th page thereof, after the words, "was unauthorized and fraudulent," the following: "She avers that no process in said cause was ever served upon her, and the decrees so obtained were without process as to her, and without her knowledge or consent," and also by inserting in the prayer of the bill the following: "And if the relief herein prayed for, cannot be granted, upon this bill, treated as a bill of review, that the same be treated and held as an original bill for relief upon the facts herein alleged"; to which amendments the defendant, M. L. Law, objected, and the court sustained the objection, refused to allow said amendments, and dismissed the bill, at the costs of the plaintiff, but without prejudice to the right of plaintiff to file an original bill, to impeach the decrees complained of, for fraud.

Plaintiff, Marie E. Law, was granted an appeal from that decree, and complains that the circuit court erred in sustaining said demurrer; and in refusing to allow said proposed amendments.

The decrees complained of are based upon the bill, taken for confessed, as against Marie E. Law, and her adult co-defendants. The bill of review is not for newly discovered evidence. It would not lie for that cause to a decree taken pro confesso. Camden v. Ferrell, 50 W. Va. 119; Hogg's Eq. Proc. Vol. I, s. 210. If the present bill can be maintained for any reason, it must be on the ground that there is error of law apparent on the face of the said decrees, such as appear in the decrees themselves; the opinion of the court; or from the pleadings in the cause, and exhibits filed therewith; or from such error as arises from facts, either admitted by the pleadings, or stated as facts, settled, declared, or allowed by the decree. Neither the depositions nor the evidence in the cause can be looked to, to show error. Dunn v. Renick, 40 W. Va. 349; Hogg's Eq. Proc., supra, s. 211.

What errors of law are apparent on the face of the decrees? The court had jurisdiction of the subject matter of the suit in which the said decrees were made and entered. Code, ch 86, s. 7. Process had been issued therein, but whether or not service thereof had been made upon the defendants, or any of them, the record does not state. The infant defendant answered the

bill by guardian ad litem, and, as recited in the record, “the adult defendants appeared, and demurred to the bill, in which demurrer the plaintiff joined, and the court, having considered the questions arising on said demurrer, overruled the same. Thereupon the said demurring defendants waived their right to answer the said bill. And the cause came on to be heard upon the bill taken for confessed against said adult defendants, exhibits, answer of said infant defendant by his guardian ad litem, and process; and was argued by counsel." As shown by the face of the record, the court also had jurisdiction of the parties to the suit. Upon examination, we find no error of law on the face of the record. The decrees are such as are warranted by the pleadings, and the facts admitted therein. In State v. Vest, 21 W. Va. 796, it is held that, "A record imports such absolute verity, that no person against whom it is pronounced will be permitted to aver or prove anything against it." JUDGE GREEN, who delivered the opinion of the court in that case, says, upon that point: "It is certainly a rule invariably recognized by the courts, that a record imports such absolute verity, that no person against whom it is pronounced will be permitted to aver or prove anything against it. This rule is well established, and we now here refer to but a few of the many cases in which this doctrine has been held. See Rex v. Carlisle, 2 Barns. Ad. 971; 23 Eng. Ch. R. 226; Reitzemberger v. Braden, 18 W. Va. 280; Carper v. McDowell, 5 Grat. 212, 226; Harkins v. Forsyth, 11 Leigh 24; Taliaferro v. Pryor, 12 Grat. 277; Vaughn et als v. The Commonwealth, 17 Grat. 386; Quinn et als. v. Commonwealth, 20 Grat. 138. Whatever therefore on the face of a book of record has been duly authenticated by the signature of the judge, must be held to be an absolute verity, and it cannot be contradicted; and so also any paper actually referred to on the record-book as filed or as constituting a part of the record is to be regarded as a part of the record, and is as much a verity as if it had been spread out at length as a part of the record." But in Springston v. Morris, 47 W. Va. 50, it is also held that the recitals of a decree, which is directly attacked for fraud, are not presumed to be absolute verities, but are subject to impeachment. JUDGE DENT, speaking for the Court, says: "Defendants insist that the plaintiffs have no right to question the recitals of the decree confirming the sale. State v. Vest, 21 W. Va. 796. This

is not the rule where a decree is directly impeached for fraud or surprise in its procurement. It may be an absolute verity as to what occurred in court and was there recorded, but not as to the recitals therein contained as to what occurred other than in the presence of the court at the time of the entry of the decree, Black. Judgm., s. 238. If such rule were to be held good in all cases, no decree could be impeached for fraud or surprise; and yet such is ordinary equity jurisdiction. Bart. Ch. Prac. (2d. Ed.) p. 841. The doctrine of the absolute verity of the record must always yield to that higher equitable doctrine that fraud vitiates all things. "It is the just and proper pride of our mature system of equity jurisprudence that fraud vitiates every transaction; and however men may surround it with forms, solemn instruments, proceedings conforming to all the details required in the laws, or even by the formal judgment of courts, a court of equity will disregard them all, if necessary, that justice and equity may prevail." Warner v. Blakeman, 43 N. Y. 507; Freem. Judgm. s. 489. The proper way in which to attack such decree, when the object is merely to set aside the decree, and then permit the original suit to continue to final hearing, is by an original bill in the nature of a bill of review. Manion v. Fahy, 11 W. Va. 482."

Therefore, the demurrer to plaintiff's bill, treated as a bill of review, there being no error of law apparent on the face of the record, was properly sustained. Plaintiff, however, asked leave to amend her bill, as hereinbefore stated. Such amendment would not contradict any recitals in the record. It does appear that the cause was heard upon process, but it is not stated that the process had been served.

If the proposed allegations be true, the plaintiff had the right to aver and prove them in some appropriate proceeding. The learned judge who decided the case, evidently thought that plaintiff had the right to maintain an original bill for the purpose of impeaching the decrees complained of, for fraud. Such seems to have been the opinion of this Court in the case of Manion v. Fahy. 11 W. Va. 491. It is there said: "If a decree has been procured by fraud, discovered after the decree is entered but before it is enrolled, the proper mode of correcting it by the English practice is neither by a petition for a re-hearing nor by a supplemental bill, in the nature of a bill of review, but the

correction must be asked by an original bill in the nature of a bill of review; see Mussell v. Morgan, 3 Bro. Ch. R. 74, 79. Such a bill is not a continuance of the former suit, as a supplemental bill in the nature of a bill of review is; but it is a new suit, and like any other original bill, it may be filed without the leave of the court. After the decree has been enrolled, no matter what may be the character of the decree, whether it be an interlocutory decree in the sense in which we use the term, or at final decree, it can, according to the English practice, be modified or annulled by the court, who pronounced the decree only by bill of review, which may be filed for error of law, apparent on the face of the record, or because of newly discovered matter. If however, this enrolled decree was procured by fraud, it can only be set aside by an original bill, in a new suit, and cannot be annulled by a bill of review: Mussell v. Morgan, 3 Bro. Ch. R. 74." Plaintiff asked the court, not only to allow her to amend her bill, but also to then treat it as and for an original bill, for relief, upon the facts therein alleged. When amended, the bill would have been in effect, an original bill for the proposed purpose, of setting aside the decrees, for fraud.

The plaintiff may of right amend his declaration, or bill, at any time before appearance of the defendant, or after such appearance, if substantial justice will be promoted thereby. Code, chapter 125, section 12. Plaintiff had filed her bill in the clerk's office at rules. Defendant, M. F. Law, appeared in court and interposed his demurrer thereto as a bill of review. If insufficient or improper as such bill of review; but sufficient, or capable of being made so, by proper amendment, for the object sought, it was error in the court to refuse such amendment; and it was also error to dismiss the bill. In Sturm v. Fleming, 22 W. Va. 404, it is said: "The name and form are immaterial; substance is all that is required. In Virginia the practice of courts of equity, which is the rule of practice in this State, allows the greatest liberality with respect to pleadings." In Riggs v. Armstrong, 23 W. Va. 760, it is held: "It is the disposition of courts of equity to regard substance rather than mere form; hence in this case a bill was filed as a cross-bill which could not be sustained as such, but having all the elements of an original bill, was held to be sufficient as an original bill and treated as such." Skaggs

v. Mann, 46 W. Va. 209, 219; Cunnigham v. Hedrick, 23 W. Va. 579.

If then, the remedy in such case is by an original bill, and the bill of review, filed in this cause, could have been properly amended, and then treated as an original bill for the purposes sought, it is plain that the court should have permitted the amendments, and then treated the bill, so amended, as an original bill, without dismissing the plaintiff, to do again, what she had done, and then and there proposed to do. The bill should have been amended and remanded to rules to have been there properly matured for hearing.

Appellant, in her bill, and her counsel in his brief, fully acquit and exonerate W. W. Brannon, the attorney, who assumed to act for her in the circuit court, from intentional wrong in the premises; but this disavowal on their part is in no way to be taken or treated as a waiver of any of the legal rights of appellant in the cause.

For the reasons stated, we are of opinion that there is error in the said decrce of October 28, 1902. We therefore reverse and set the same aside, and remand the cause to the circuit court of Lewis county to be therein further proceeded with, according to the views herein expressed, and further in accordance with the rules and principles governing courts of equity.

Reversed.

1.

CHARLESTON.

WENGER v. FISHER AND OTHERS.

Submitted January 26, 1904. Decided February 16, 1904.

INJUNCTION-Public Roads.

An injunction is the proper remedy to prevent the location and establishment of a public road through private property, without prior compliance with the requirements of law. (p. 15).

2. ROADS-County Court-Suit.

In such case, it is not improper to join as uefendants the county court or other tribunal, charged with the establishment