Motion to Set Aside Judgment: Grounds, Deadlines, and Appeals

In Virginia, a motion to set aside a judgment has to fit one of a small number of statutory paths, and each has its own deadline. Code § 8.01-428 lists four grounds for vacating a default judgment, gives courts power to fix clerical errors, offers limited relief to parties who never learned a final order was entered, and preserves an independent action to attack a judgment in unusual circumstances. Before any of that, Supreme Court Rule 1:1 gives the trial judge 21 days to reconsider almost anything. Which path applies to you depends on why you want the judgment gone and how long ago it was entered.

The 21-Day Window Under Rule 1:1

Every final judgment, order, or decree in Virginia stays under the trial court’s control for 21 days after the judge signs it. Inside that window, the court can modify, vacate, or suspend its own ruling for virtually any reason. Once 21 days pass, that broad authority is gone, and you are left with the specific statutory grounds below or an appeal.¹

The clock runs from the date the judge signs, not the date you find out about the order. If you have any doubt about a recent ruling, move quickly. This is the easiest path to relief and the one most often missed.

Grounds for Setting Aside a Default Judgment

Section 8.01-428(A) applies only to judgments entered because the defendant did not appear or respond. It does not reopen cases where both sides participated and the court ruled against you. The statute uses “may,” so even if you prove a ground, the judge is not required to grant relief.² Four grounds are available.

Fraud on the Court

Fraud on the court is conduct that corrupts the judicial process itself, not ordinary dishonesty between the parties. Falsified documents, tampered evidence, or lying to the judge about whether the defendant was served can qualify. The motion must be filed within two years of the judgment.²

Two years sounds generous but rarely is. You have to discover the fraud, gather proof, and file. Waiting rarely helps.

Void Judgment

A judgment is void when the court lacked authority to enter it. The most common example is defective service of process: if you were never properly served, the court never had jurisdiction over you, and the judgment has no legal effect. A ruling outside the court’s subject-matter jurisdiction can also be void.

A void judgment carries no filing deadline, because no passage of time can make a legal nullity valid. In practice, though, courts expect you to act once you learn of the judgment. Sitting on the problem after you know about it can create trouble even without a formal time bar.²

Accord and Satisfaction

This ground applies when the parties already resolved the underlying dispute by agreement and the plaintiff obtained a default judgment anyway. You need clear proof the deal existed: a written settlement, canceled checks, receipts, correspondence showing both sides understood the matter was closed. Vague recollections of an understanding will not carry the motion.

The statute sets no specific deadline for accord-and-satisfaction motions, but general delay principles apply, and the two-year fraud timeline is a useful reference point for how long courts think reasonable is.²

Servicemember Status

The fourth ground protects military servicemembers who were on active duty when the lawsuit was served or when the default was entered. Virginia’s statute incorporates the federal Servicemembers Civil Relief Act.²

To reopen a default under 50 U.S.C. § 3931, the servicemember must show two things: that military service materially affected the ability to defend the case, and that a valid defense exists to all or part of the claim. The application must be filed within 90 days after military service ends.³

What the Statute Does Not Cover

Virginia does not list “excusable neglect” as a ground. Forgetting to respond, losing the papers, or misunderstanding the deadline is not enough on its own. Subsection E reinforces this: nothing in the statute creates grounds to set aside an otherwise valid default judgment against a defendant who was not a servicemember at the relevant time.² Federal courts and many states allow relief for good cause; Virginia does not. If your only explanation is that you failed to respond, your realistic options are the 21-day Rule 1:1 window or an appeal.

Missed Notice of a Final Order

Subsection C of § 8.01-428 covers a different problem: a party who was not in default and took part in the case, but never learned that a final order was entered. To use it, the attorney or unrepresented party must show that the lack of notice was not the result of a failure to exercise due diligence and that the missing notice cost the party the chance to seek post-trial relief or file an appeal.²

The deadline is 60 days from entry of the order. Within that window, the circuit court can modify, vacate, or suspend the order, or grant leave to appeal, with appeal deadlines running from the date of the order granting leave.

Correcting Clerical Errors

Subsection B lets courts fix clerical mistakes in judgments or the court record at any time. These are errors of oversight or inadvertent omission: a misspelled name, a transposed number, a date that does not match what the court actually ordered. The court can act on its own or on motion by either party, with no deadline.²

The line to watch is clerical versus judicial. If the judge intended to award $50,000 and the order says $5,000, that is clerical. If the judge calculated damages incorrectly and picked the wrong figure, that is judicial, and it requires an appeal, not a clerical-mistake motion. Once a case is on appeal, clerical corrections can be made before the appeal is docketed; after docketing, the trial court needs the appellate court’s permission.²

Independent Actions to Attack a Judgment

Subsection D preserves the court’s power to hear an independent action to relieve a party from any judgment or proceeding. An independent action is a separate lawsuit, not a motion in the original case, and it can be filed at any time. It is not limited to default judgments.²

The statute highlights two uses: relief to a defendant who was never served with process (governed by § 8.01-322), and setting aside a judgment obtained by fraud on the court. For a defendant served only by publication who never appeared, § 8.01-322 allows a petition within two years after the judgment, or within one year after being served with a copy of the judgment if that service happened more than a year before the two-year deadline would run out.⁴

Independent actions are the safety valve for situations that do not fit the other categories: a non-defaulting party facing a judgment tainted by fraud, someone shut out of the original proceeding through no fault of their own, or newly discovered evidence that could not have been found earlier. Courts use this power sparingly.

Appealing a Denial

If the trial court denies your motion, you can appeal. A petition for appeal from a final trial court judgment to the Supreme Court of Virginia must be filed within 90 days after the judgment. Extensions may be granted for good cause but are discretionary.⁵ Virginia’s civil appellate process is discretionary in many cases, so the Court is not required to hear the appeal.

Choosing the Right Path

The most common mistake is reaching for the wrong subsection. A short map:

Defaulted and want the judgment vacated: subsection A, using one of the four grounds. If none fits, you are limited to Rule 1:1 or an appeal.
Participated in the case but never learned about the final order: subsection C, within 60 days of entry.
Judgment contains a typo or math slip that does not match what the court decided: subsection B, at any time.
None of the above categories fit but the judgment is deeply wrong: subsection D, by filing a separate lawsuit, with a high bar to clear.

Whichever route applies, timing decides more cases than merit does. The 21-day Rule 1:1 window is unforgiving, the 60-day deadline in subsection C runs fast, and the two-year fraud deadline passes sooner than most people expect. Identify the ground, confirm the deadline, and file.

1
Supreme Court of Virginia. Rules of the Supreme Court of Virginia – Rule 1:1
2
Virginia Code Commission. Virginia Code 8.01-428 – Setting Aside Default Judgments, Clerical Mistakes, Independent Actions to Relieve Party From Judgment or Proceedings, Grounds and Time Limitations
3
Office of the Law Revision Counsel. 50 USC 3931 – Protection of Servicemembers Against Default Judgments
4
Virginia Code Commission. Virginia Code 8.01-322 – Within What Time Case Reheard on Petition of Party Served by Publication, and Any Injustice Corrected
5
Virginia Code Commission. Virginia Code Chapter 26 – Appeals to the Supreme Court