Cralle v. Cralle

81 Va. 773 | Va. | 1886

Hinton, J.,

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Nottoway county, rendered in this same cause pending a former appeal in this court, by which decree the appellee is allowed temporary maintenance and counsel fees out of the estate of the husband for services to be performed in this court. And the question we have to decide is, not whether the circuit court had jurisdiction to render such a decree, but whether it had the right to enter any decree during the pendency of that cause in this court.

The statute, chapter 105, section ten, Code 1873, in express terms, authorizes the trial court to make any order that may be necessary to compel the man to pay such sums as may be required for the maintenance of the woman and to enable her to carry on the suit whilst it is pending in that court, and this should usually be done before or at the time of the sentence of divorce. But this statute affords no justification for the action of the circuit court in rendering the decree appealed from, whilst an appeal was pending from a former decree allowing alimony in the same cause.

Although, perhaps, an appeal in a chancery cause does not here, any more than in England, stop the proceedings under the decree from which the appeal is taken, yet there can be no manner of doubt but that the effect of an appeal, when fully perfected by the execution of the proper supersedeas bond, is to deprive the subordinate court of all power over the parties and subject matter of controversy, until the cause is remanded back for its further action; and the only orders, therefore, .which that court can rightfully make are such as are needful for the preservation of the res and rights of the parties pending the appeal. Slaughter House Cases, 10 Wall. 273; Little-john v. Ferguson, 18 Gratt. 53; Moran v. Johnston, 26 Gratt. 108.

Under the statute, chapter 178, section eleven, Code 1873, it is true, the court, or judge to whom the petition for appeal is presented, may stay the proceedings “in part,” as well as “in whole,” but if the supersedeas is allowed to the whole cause, then the power of the lower court over the cause is suspended and gone, save to the extent indicated above. Thenceforth the cause is regarded as pending in the appellate court, and any order or decree that may be made by the subordinate court must be simply null and void.

Now, in the case before us, it is apparent that the decree appealed from was not intended to effectuate either of the purposes above mentioned; but it is also' apparent that the amount in controversy, being the sum for which the decree was rendered, which is not shown to amount to as much as $500, and, therefore, this court must dismiss this appeal. This is done, however, without prejudice to the right of the appellant to apply forthwith to this court for a rule to show cause, why a writ of prohibition should not issue to prohibit the execution of the decree aforesaid; and in the meanwhile-the-attempt to execute the decree of the court below will subject all parties concerned to a proceeding for a contempt.

Appeal dismissed.