Boyce & Wright v. McCaw

76 Va. 740 | Va. | 1882

Lewis, J.,

delivered the opinion of the court.

*742In this case a number of interesting and important questions have been discussed by the counsel, which it is unnecessary to decide. In the view which we take of the case, it can be disposed of in a few words.

The appellants are judgment debtors of William R. McCaw, surviving member of the late firm of T. D. McCaw & Co., who, at the time of the institution of this suit, was a non-resident of Virginia. The object of the suit by the plaintiffs, who are the appellants here, was to attach in their own hands the judgment debt due by them as aforesaid, to satisfy a claim which they alleged was due to them by the said firm.

An attachment issued, which was afterwards abated by the decree of the circuit court, and the cause was retained to be decided upon the issues of fact raised by the pleadings.

William R. McCaw answered the bill, and in his answer distinctly denied every material allegation thereof.

No testimony was taken, and the cause coming on to be heard at the following term, the bill was dismissed.

From these two decrees an appeal was applied for and allowed.

It is unnecessary to consider whether there is error in the first decree, abating the attachment. As there was no testimony and nothing in the record to overthrow' the responsive allegations of the answer, or to show cause of action on the part of the appellants, the bill was properly dismissed by the last decree. If, therefore, it were conceded that the court erred in abating the attachment, as the case stood, the appellants have not been prejudiced by the error. It may be that the first decree was riot a decree adjudicating the principles of the cause, from which an appeal was allowable, and that it was necessary to await the final decree before the cause could be removed on appeal into this court; still, as no cause of action was shown, the court *743below could not do otherwise than dismiss the bill. We are at liberty to look at the case only as it is presented by the record ; and, so viewing it, we cannot say that the appellants have any cause of action whatever. On the principle that what does not appear, does not exist, the presumption is they have none. And if they have none, there is nothing in the decrees of the circuit court of which they can complain.

. The decrees are therefore affirmed.

Decebes affirmed.