Virginia Code

Va. Code Ann. § 8.01-322 (2026)

Within what time case reheard on petition of party served by publication, and any injustice corrected

✓ current as of May 2026

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If a party against whom service by publication is had under this chapter did not appear before the date of judgment against him, then such party or his representative may petition to have the case reheard, may plead or answer, and may have any injustice in the proceeding corrected within the following time and not after:

1. Within two years after the rendition of such judgment, decree or order; but

2. If the party has been served with a copy of such judgment, decree, or order more than a year before the end of such two-year period, then within one year of such service.

For the purpose of subdivision 2 of this section, service may be made in any manner provided in this chapter except by order of publication, but including personal or substituted service on the party to be served, and personal service out of the Commonwealth by any person of eighteen years or older and who is not a party or otherwise interested in the subject matter in controversy.

Code 1950, § 8-78; 1977, c. 617.

Notes of Decisions

Cited in 26 cases (3 in the last 5 years), 1982–2023 · leading case: Hayes v. Hayes, 351 S.E.2d 590 (Va. Ct. App. 1986).

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Hayes v. Hayes, 351 S.E.2d 590 (Va. Ct. App. 1986). · cites it 12× “The trial court held that the provisions of Code § 8.01-322 constituted a time-bar to wife’s claim for support because the claim was filed more than two years subsequent to the entry of a final decree of divorce between the parties.”

Mitchell v. Mitchell, 314 S.E.2d 45 (Va. 1984). · cites it 13× “On June 16, 1978, Helen filed a petition for rehearing under the provisions of Code § 8.01-322. The petition was served on Mitchell’s attorney in the divorce proceeding, but the attorney filed a motion objecting to such service on the ground that he was not in contact with…”

Toomey v. Toomey, 465 S.E.2d 838 (Va. 1996). · cites it 4× “The circuit court awarded the divorce and did not retain jurisdiction in the divorce decree to adjudicate equitable distribution after entry of that decree.”

Rook v. Rook, 353 S.E.2d 756 (Va. 1987). “— This section does not limit the power of the court to entertain at any time an independent action to relieve a party from any judgment or proceeding, or to grant relief to a defendant not served with process as provided in § 8.01-322, or to set aside a judgment or decree for…”

Stephens v. Stephens, 331 S.E.2d 484 (Va. 1985). · cites it 3× “In his opening brief, Lawrence attacks the validity of these judgments on the basis of Code § 8.01-322. However, given the facts of this case, that code section is inapplicable.”

Charles v. Precision Tune, Inc., 414 S.E.2d 831 (Va. 1992). “— This section does not limit the power of the court to entertain at any time an independent action to relieve a party from any judgment or *317 proceeding, or to grant relief to a defendant not served with process as provided in § 8.”

Aviles v. Aviles, 416 S.E.2d 716 (Va. Ct. App. 1992). “— This section does not limit the power of the court to entertain at any time an independent action to relieve a party from any judgment or proceeding, or to grant relief to a defendant not served with process as provided in § 8.01-322, or to set aside a judgment or decree for…”

Byrum v. Lowe & Gordon, Ltd., 302 S.E.2d 46 (Va. 1983). “§ 8.01-322, or to set aside a judgment or decree for fraud upon the court.”

Nat'l Airlines, Inc. v. Kevin P., 292 S.E.2d 308 (Va. 1982). “- This section does not limit the power of the court to entertain at any time an independent action to relieve a party from any judgment or pro *580 ceeding, or to grant relief to a defendant not served with process as provided in § 8.01-322, or to set aside a judgment or decree…”

Turner v. Commonwealth, 90 Va. Cir. 322 (Norfolk Cir. Ct. 2015). · cites it 5× “” The second clause is purely civil as Va. Code § 8.01-322 is concerned with service by order of publication.”

Cordova v. Alper, 64 Va. Cir. 87 (Fairfax Cir. Ct. 2004). “01-428(D) which reads: This section does not limit the power of the court to entertain at any time an independent action to relieve a party from any judgment or proceeding, or to grant relief to a defendant not served with process as provided in § 8.01-322, or to set aside a…”

Erin Marie Coster Evans v. James August Evans, Jr. (Va. Ct. App. 2020). · cites it 12× “Furthermore, we have previously concluded that Code § 8.01-322 applies only to cases “over which the trial court had jurisdiction.”

Show all 26 citing cases →

— Va. Code Ann. § 8.01-322(1) — 1 case

Erin Marie Coster Evans v. James August Evans, Jr. (Va. Ct. App. 2020). “Furthermore, we have previously concluded that Code § 8.01-322 applies only to cases “over which the trial court had jurisdiction.”

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