Cowan v. Doddridge

22 Gratt. 458 | Va. | 1872

Moncure, P.

delivered the judgment, of the court.

This day came the parties by their counsel, and the court, having maturely considered the motion of the defendant in error to dismiss the writ of error and supersedeas awarded in this case to a judgment rendered by the Circuit court of Pulaski county in this cause, on the 20th day of September 1871, upon the ground that the said writ was improvidently awarded, is of opinion— without now deciding whether in any case an appeal will lie from the judgment of a Circuit court sitting as an appellate court under section 5 of chapter 171 of the Acts of Assembly, 1869-70, page 227—that, whether the said Circuit court intended by the said judgment to decide the question of the constitutionality of the said section of the said act or not, an appeal does not lie from the said judgment; because, if the said court did not intend so to decide, then the matter in controversy, exclusive of costs, was less in value or amount.than $500' on the 23d day of September 1869, when the judgment was [rendered by the said Circuit court affirming the judgment of the County court of said county in this cause; and if the said Circuit court did intend so to clec^e’ auc¡ therefore declared that it had “ not jurisdiction to review, reverse or affirm” the said judgment of the 23d day of September 1869, then the said Circuit court intended to decide &■ question which had already been decided by this court, in pursuance of the said section of the said act—this court having, on the 6th day of March 1871, ordered the said cause to “be transferred and docketed in the said Circuit court of Pulaski county, whence the appeal was originally taken, there to be heard and finally disposed of, as by an appellate court, according to law.” Therefore it is considered and ordered that the said motion be sustained, and the said writ of error and supersedeas be dismissed, as having been improvidently awarded, and that the plaintiff pay to the defendant in error his costs by him about his said motion expended.

And on the motion of the plaintiff in error, it is ordered that a writ of mandamus nisi be issued, commanding the Hon. John H. Fulton, judge of the said Circuit court of Pulaski county, to proceed to hear and finally dispose of, as by an appellate court, in pursuance of section 5 of chapter 171 of the Acts of 1869-70 aforesaid, and in pursuance of the said order of this court of the 6th day of March 1871, the said cause which was thereby ordered to be transferred and docketed in the said Circuit court as aforesaid ; unless he shall, on or before the 10th day of the next term of this court, appear here and show good cause to the contrary. And it is further ordered, that a copy of this order be duly served upon him, and returned to this court,- or the clerk thereof, on or before that day, with evidence of such service thereon endorsed; and that such service shall have the same force and effect as the execution upon him of a writ of mandamus nisi, issued in pursuance hereof.

Appeal dismissed, and rule for prohibition awarded.