5 W. Va. 567 | W. Va. | 1872
This is an unusual proceeding and involves a question of much delicacy as well as practical importance.
The foundation of the rule for the prohibition is the decree rendered by the circuit court of Kanawha county, on the 29th of January, 1872, in the suit in chancery, then and now pending therein, between Caroline Dunbar as complainant, and William A. Dunbar, her husband, as defendant. By this decree the temporary custody of the infant child of the complainant and defendant was awarded to the former pending the suit, (which was instituted for the purpose of obtaining a divorce, cfec.,) and the sheriff of the county was required and ordered to execute the decree, if the defendant should fail to do so, by delivering the child over to the complainant. It appears that upon the rendition of this decree the defendant executed and filed with the clerk of said court an undertaking with proper security in accordance with the third section of chapter 135 of the code of West Virginia p. 639, and the court being still in session, the defendant asked that the filing of such undertaking might be noted on the record. But the court refused to allow the filing of the same to be so entered, for the reason that, in its opinion, the decree or order was not such as the defendant under the provisions of said chapter had a right to appeal from; and at the same time signed a bill of exceptions at the instance of the defendant, showing such refusal and stating the reasons therefor.
In his answer to the rule the judge of the circuit court also admits the facts set out in the petition for the rule as to the rendition of the decree, the filing of the undertaking with security, and the refusal of the court to note such filing on the record, assigning as a reason for such refusal, that in his
The question whether the appeal was legally taken is not now before us, and we need not therefore consider it. But the solo question to be now determined is whether it was competent for the circuit court to determine for itself the legality of such appeal, and to proceed' notwithstanding, to enforce or carry into effect the decree or order appealed from. The 5th section of the same chapter provides that, upon the filing of the undertaking necessary to a stay of execution, Ac., with notice to the appellee in tbe manner provided for, “ all further proceedings upon the judgment, order or decree appealed from shall cease; and if an execution has been issued thereon, the clerk shall notify the officer in whose hands the same maybe, of the filing of such undertaking, and such officer shall thereupon return the execution as follows: * Stayed by appeal.’” From this explicit and definite language there can be no shade of doubt, that all proceedings on any judgment or decree appealed from must absolutely cease until the questions arising upon such appeal are determined by the proper tribunal. And it seems to me equally clear that these questions can only be determined by the court where the case, as to the judgment, order or decree appealed from, is properly pending. I must conclude therefore that upon an appeal (with stay of execution) in any case from a judgment, order or decree the jurisdiction of the circuit court
Writ of prohibition awarded.