83 Va. 316 | Va. | 1887
delivered the opinion of the court.
After the appeal (ante, p. 300) which has just been dis
“ On the petition of C. M. Edwards to have a receiver appointed to take charge of the land named in these causes and to rent the same out during the pendency of the appeal from the decree of November term, 1884, the parties were fully heard by counsel. Upon consideration whereof, the court doth appoint Wm. J. Overby, sheriff of this county, as such receiver, and doth adj udge, order and decree that said Overby do take charge of said land and rent the same for this year, and also from year to year during the pend-ency of said appeal; that he take bond with good security for the rent of each year, payable on the twenty-fifth of December of each year, and if not paid, that he take the necessary legal steps to collect the same, and, when collected, he shall hold the money subject to, the further order of the court. Said Overby shall make report of his proceedings.” From this decree an appeal was awarded by one of the judges of this court.
We are of opinion that the action of the circuit court in the particular complained of must be affirmed upon the authority of the case of Moran v. Johnston, 26 Gratt. 108. In that case there was a decree for the sale of certain real estate, from which decree there was an appeal taken to this court. After the appeal had been obtained, and during its pendency, the lower court, upon the petition of certain creditors who were parties to the suit, appointed a receiver to take possession of the real estate in the proceedings mentioned, and to rent it out and collect the rents until the further order of the court. From this decree the defendants appealed, and the decree was affirmed on the ground that the appointment of a receiver was not repugnant to the first appeal, but was made necessary by that
It was also said by the court that, “though after a final decree and appeal therefrom tó the appellate tribunal the cause may no longer be pending in the court of original jurisdiction, it may in certain cases be brought up and restored to the docket upon a petition for rehearing pending an appeal; a fortiori it may, upon the petition for the appointment of a receiver to preserve the fund, pending the litigation, which does not involve any matter litigated ■by the appeal.”
The present case is even stronger in favor of the action ■of the court complained of; for here there had been no final decree, and the causes in which such action was taken have, therefore, not been removed from the docket of the circuit court. The decree from which the first appeal was taken was an interlocutory decree, and consequently the appointment of a receiver was right, without a formal petition having been filed praying that the causes be restored to the docket. Such a petition was wholly unnecessary. The causes were on the docket when the application for the appointment of a receiver was made and granted. There is nothing objectionable in the order appealed from, and the same is affirmed.
Degree affirmed.