A. Default judgments and decrees pro confesso; summary procedure. Upon motion of the plaintiff or judgment debtor and after reasonable notice to the opposite party, his attorney of record or other agent, the court may set aside a judgment by default or a decree pro confesso upon the following grounds: (i) fraud on the court, (ii) a void judgment, (iii) on proof of an accord and satisfaction, or (iv) on proof that the defendant was, at the time of service of process or entry of judgment, a servicemember as defined in 50 U.S.C. § 3911. Such motion on the ground of fraud on the court shall be made within two years from the date of the judgment or decree.
B. Clerical mistakes. Clerical mistakes in all judgments or other parts of the record and errors therein arising from oversight or from an inadvertent omission may be corrected by the court at any time on its own initiative or upon the motion of any party and after such notice, as the court may order. During the pendency of an appeal, such mistakes may be corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending such mistakes may be corrected with leave of the appellate court.
C. Failure to notify party or counsel of final order. If counsel, or a party not represented by counsel, who is not in default in a circuit court is not notified by any means of the entry of a final order and the circuit court is satisfied that such lack of notice (i) did not result from a failure to exercise due diligence on the part of that party and (ii) denied that party an opportunity to pursue post-trial relief in the circuit court or to file an appeal therefrom, the circuit court may, within 60 days of the entry of such order, modify, vacate, or suspend the order or grant the party leave to appeal. Where the circuit court grants the party leave to appeal, the computation of time for noting and perfecting an appeal shall run from the entry of such order, and such order shall have no other effect.
D. Other judgments or proceedings. 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 fraud upon the court.
E. Nothing in this section shall constitute grounds to set aside an otherwise valid default judgment against a defendant who was not, at the time of service of process or entry of judgment, a servicemember as defined in 50 U.S.C. § 3911.
1977, c. 617; 1991, c. 39; 1993, c. 951; 2005, cc. 333, 909.
Notes of Decisions
Cited in
526
cases (
165 in the last 5 years), 1978–2026 · leading case:
Belew v. Com., 726 S.E.2d 257 (Va. 2012).
Belew v. Com., 726 S.E.2d 257 (Va. 2012).
· cites it 62× “The holdings in our prior cases addressing the applicability of Code § 8.”
Rose v. Jaques, 597 S.E.2d 64 (Va. 2004).
· cites it 44× “To hold otherwise, Stow Mills argued, would nullify Rule 1:1, ignore the General Assembly's intent as expressed in subsection C of Code § 8.01-428 and would lead to chaos in the judicial system.”
Franklin Minor v. Commonwealth of Virginia, 791 S.E.2d 757 (Va. Ct. App. 2016).
· cites it 14× “The amended order does not contain the phrase “nunc pro tunc” or reference Code § 8.01-428(B). On January 20, 2016, appellant and his trial counsel filed multiple motions in the trial court.”
Zhou v. Zhou, 562 S.E.2d 336 (Va. Ct. App. 2002).
· cites it 28× “—If counsel, or a party not represented by counsel, who is not in default in á circuit court is not notified by any means of the entry of a final order and the circuit court is satisfied that such lack of notice (i) did not result from a failure to exercise due diligence on the…”
Sch. Bd. v. Caudill Rowlett Scott, Inc., 379 S.E.2d 319 (Va. 1989).
· cites it 20× “The defendants filed a motion in this Court to dismiss the appeal on the grounds that there was no clerical mistake justifying the vacation of the July 25 order, that the trial court lost jurisdiction to vacate the July 25 order 21 days after its entry, that the July 25 order…”
Wellmore Coal Corp. v. Harman Mining Corp., 568 S.E.2d 671 (Va. 2002).
· cites it 14× “” Accordingly, Wellmore maintains that the defect in signature was curable pursuant to Code § 8.01-428(B). II. Analysis Rule 5:9(a) provides that “[n]o appeal shall be allowed unless, within 30 days after the entry of final judgment .”
Faysal M. Zedan v. Sylvie E. Westheim, 729 S.E.2d 785 (Va. Ct. App. 2012).
· cites it 15× “Father assigns error to this conclusion, arguing that “[t]he court erred in applying Code § 8.01-428(0 to the Father’s Motion to Vacate the Final Decree of Annulment.”
Dorn v. Dorn, 279 S.E.2d 393 (Va. 1981).
· cites it 16× “Benoit), in the process of obtaining a divorce, drafted and signed a stipulation agreement, which included a provision for the support of the couple’s two children, James G.”
McEwen Lumber Co. v. Lipscomb Bros. Lumber Co., 360 S.E.2d 845 (Va. 1987).
· cites it 18× “For the same reason, we have consistently construed Code § 8.01-428 and its predecessors, which create exceptions to the finality of judgments, narrowly.”
Cordova v. Alper, 64 Va. Cir. 87 (Fairfax Cir. Ct. 2004).
· cites it 28× “the Commonwealth; (5) that the evidence is insufficient to establish that Alper was mentally incapacitated during the relevant times and that, even if he were, any such incapacity would, at best, render the underlying judgment voidable, not void; and (6) that Alper has failed to…”
Charles v. Precision Tune, Inc., 414 S.E.2d 831 (Va. 1992).
· cites it 16× “” Code § 8.01-428 states: A. Default judgments and decrees pro confesso; summary procedure.”
— Va. Code Ann. § 8.01-428(6) — 1 case
— Va. Code Ann. § 8.01-428(A) — 38 cases
McEwen Lumber Co. v. Lipscomb Bros. Lumber Co., 360 S.E.2d 845 (Va. 1987).
“For the same reason, we have consistently construed Code § 8.01-428 and its predecessors, which create exceptions to the finality of judgments, narrowly.”
— Va. Code Ann. § 8.01-428(A)(ii) — 10 cases
— Va. Code Ann. § 8.01-428(A)(iii) — 1 case
— Va. Code Ann. § 8.01-428(B) — 325 cases
Belew v. Com., 726 S.E.2d 257 (Va. 2012).
“The holdings in our prior cases addressing the applicability of Code § 8.”
Franklin Minor v. Commonwealth of Virginia, 791 S.E.2d 757 (Va. Ct. App. 2016).
“The amended order does not contain the phrase “nunc pro tunc” or reference Code § 8.01-428(B). On January 20, 2016, appellant and his trial counsel filed multiple motions in the trial court.”
Zhou v. Zhou, 562 S.E.2d 336 (Va. Ct. App. 2002).
“—If counsel, or a party not represented by counsel, who is not in default in á circuit court is not notified by any means of the entry of a final order and the circuit court is satisfied that such lack of notice (i) did not result from a failure to exercise due diligence on the…”
Wellmore Coal Corp. v. Harman Mining Corp., 568 S.E.2d 671 (Va. 2002).
“” Accordingly, Wellmore maintains that the defect in signature was curable pursuant to Code § 8.01-428(B). II. Analysis Rule 5:9(a) provides that “[n]o appeal shall be allowed unless, within 30 days after the entry of final judgment .”
Sch. Bd. v. Caudill Rowlett Scott, Inc., 379 S.E.2d 319 (Va. 1989).
“The defendants filed a motion in this Court to dismiss the appeal on the grounds that there was no clerical mistake justifying the vacation of the July 25 order, that the trial court lost jurisdiction to vacate the July 25 order 21 days after its entry, that the July 25 order…”
— Va. Code Ann. § 8.01-428(C) — 42 cases
Rose v. Jaques, 597 S.E.2d 64 (Va. 2004).
“To hold otherwise, Stow Mills argued, would nullify Rule 1:1, ignore the General Assembly's intent as expressed in subsection C of Code § 8.01-428 and would lead to chaos in the judicial system.”
Faysal M. Zedan v. Sylvie E. Westheim, 729 S.E.2d 785 (Va. Ct. App. 2012).
“Father assigns error to this conclusion, arguing that “[t]he court erred in applying Code § 8.01-428(0 to the Father’s Motion to Vacate the Final Decree of Annulment.”
— Va. Code Ann. § 8.01-428(C)(ii) — 1 case
— Va. Code Ann. § 8.01-428(D) — 54 cases
Cordova v. Alper, 64 Va. Cir. 87 (Fairfax Cir. Ct. 2004).
“the Commonwealth; (5) that the evidence is insufficient to establish that Alper was mentally incapacitated during the relevant times and that, even if he were, any such incapacity would, at best, render the underlying judgment voidable, not void; and (6) that Alper has failed to…”
— Va. Code Ann. § 8.01-428(b) — 4 cases
— Va. Code Ann. § 8.01-428(c) — 1 case
— Va. Code Ann. § 8.01-428(d) — 1 case
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.