Gilmer v. Francisco

131 Va. 47 | Va. | 1921

Sims, J.,

after making the foregoing statement,- delivered the following opinion of the court:

[1] It appears from the statement preceding this opinion that we have nothing but a moot case before us, so that, upon well-settled principles, the appeal must be dismissed. Levy v. Kosmo, 129 Va. 446, 106 S. E. 228, and cases cited.

[2-4] The court below had no jurisdiction, in the ex parte proceeding in which the ¡appellant was not before the court, when the order appealed from was entered, to affect the right or title of the appellant to the land which he claims is in truth in controversy. So far as such right or title is concerned, if it exists, the order appealed from was and is plainly void, if it had no other support than appears from the record before us, as the appellant claims is the case. Whether the latter claim of appellant is correct or not, the record before us is insufficient for us to determine. It may or may not be that the question of the true location of the road on the ground in accordance with the course of the center of the road as established by the orders of the board of supervisors and the circuit court was put in issue by the pleadings and proof in the injunction suit land decided by the final decree therein. If so, that matter would be res adjudicata so far as the appellant is concerned. If not so, and if not adjudicated in the road condemnation proceeding, or other proceeding in which appellant wias a party, that matter is still undetermined and unaffected by the order of court under review. Neither the bill nor the evidence in the injunction suit nor the evidence in the road-condemnation proceedings being before us, we cannot pass upon the question as to whether the matter is res adjudicata because of what took place in those proceedings.

[5] In so far as the removal of the fence is concerned, since it'has been removed pending the appeal (this having occurred, as we understand it, before, the writ of supersedeas was executed), no order we could enter would prevent that removal. The case not being one in which the right of the appellant to restore or have the fence restored is involved, since such right, if it exists, has not been affected by the order appealed from, we have no jurisdiction to enter upon the consideration of the question of whether the appellant is entitled to the alternate relief of a decree against the appellee requiring him' to restore the fence.

The appeal will, therefore, be dismissed, without prejudice to the appellant to assert in any other proper proceeding such right or title as he may have, if any, to the land which he claims in his petition for the appeal to be in controversy.

Dismissed.