140 Va. 399 | Va. | 1924
delivered the opinion of the court.
This suit is the aftermath of Baker v. Evers, 137 Va. 492, 120 S. E. 278, in which it was held that the road authorities had the right to construct the road in controversy through the lands of Baker. The road was
In the absence of fraud, and it is conceded there was none in this case, a taxpayer cannot thus call in question the amount of the consideration of a contract, otherwise valid, entered into by the board of supervisors of a county.
This leaves for consideration only the question whether or not the contract entered into by the board of supervisors is subject to the provisions of sections 2029 and 2031 of the Code.
Chapter 85 of the Code, embracing sections 2029 and 2031 was not intended to curtail the powers of the board of supervisors conferred by chapter 84, but to deal mainly with the matters indicated by its title, though
The act of 1916 declares: .“Notice of the letting of these contracts to be given to the public by the posting of handbills in each precinct and by newspaper advertising in at least one newspaper in each county as -the board of supervisors may direct.” When this was carried into section .2029 of the Code, the word “these” was changed to “all,” and from this it is argued that all road contracts made by the supervisors must be so published. But an examination of other sections of that chapter will show that this cannot be the proper construction.
Section 2029 shows on its face that it was restricted to maintenance and improvements and does not apply to the construction of new roads. It provides that, the “notices shall specify what maintenance and improvements shall be required, and what part, if any, the county road superintendent shall undertake.” It then divides this work of maintenance and improvement into two classes, one of which is to be done by the county authorities and the other let to contract. It declares that “such work as the application of stone, grading or ■other work requiring machinery, shall be done by the •county authorities,” and that the part let to contract shall only include such maintenance as does not require Toad machinery, excepting a log drag. Of course, no
It is true that the construction and macadamizing of new roads involve much larger sums than contracts for mere maintenance and repairs, and it would seem reasonable that the legislature should require publication of the letting of the former as well as the latter. If it has not done so, the argument is one to be addressed to the legislature. All we decide is that it has not .done -so by sections 2029 and 2031 of the Code.
There was a preliminary motion to dismiss the appeal in the ease “on the ground that the decree appealed from was not a final decree. The court was still in session when this appeal was taken and the decree complained of was not final. Non constat, but that the court may have changed this decree before the court adjourned.”
The decree complained of dissolved the injunction and dismissed the bill at the complainants’ costs. It is clear that the appellants had the right to appeal because the decree dissolved the injunction and also ad
In Cralle v. Cralle, 81 Va. 773, 775, it is said: “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 the subject matter of controversy, until the cause is remanded back for its further action; and the only orders, therefore, which the 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; Littlejohn v. Ferguson, 18 Gratt. (59 Va.) 53;. Moran v. Johnston, 26 Gratt. (67 Va.) 108.”
In 2 R. C. L., page 120, section 95, it is said: “Where an appeal with a supersedeas, or stay, has been taken, the jurisdiction of the trial court is suspended as to all matters necessarily involved in the appeal. Accordingly, pending an appeal, the lower court, as a rule, has no power to allow amendments of the proceedings. For example, pending an appeal from an order denying a motion to quash an execution, the court has no power to allow an amendment of the execution. So, also, pending an appeal, the trial court has no jurisdiction to entertain a bill to review the judgment, nor can the trial court set aside the order appealed from.” See also Planters Bank v. Neely, 7 How. (Miss.), 80, 40 Am. Dec. 51; State v. Kolsem, 130 Ind. 434, 29 N. E. 595, 14 L. R. A. 566. In Merrifield v. Western, etc. Co., 238 Ill. 526, 87 N. E. 379, 128 Am. St. Rep. 148, it is said: “When an appeal is perfected the jurisdiction and control of the court below cease and the appeal becomes a stay of all proceedings to enforce the execution of the judgment or decree.”
Where the appeal is from a final decree, the.limitation on the time within which it must be applied for begins to run from the date of the decree and not from the time of the adjournment of the term at which by operation of law it becomes final (Code section 6355; Bragg v. Justis, 129 Va. 354, 106 S. E. 335), and this time is not affected by the time at which the trial court adjourns. It is clear, therefore, that an appeal may be taken from a decree although the term at which it was rendered has not adjourned. In the instant case, the decree was valid when entered, it was never thereafter altered or amended, and was a final decree.
The motion to dismiss will be denied, and the judgment of the trial court will be affirmed.
Affirmed.
Sec. 2029. “Notice of the letting of all contracts shall be given to the public by the posting of hand bills in each precinct, and by newspaper advertising in at least one newspaper in each county, for such time and in such manner as the board of supervisors may direct. Such notices shall specify what maintenance or improvements shall be required, and what part, if any, the county road superintendent shall undertake. Such work as the appli
Sec. 2031. “Such bids as are accepted by the board of supervisors shall be published in some newspaper of general circulation in said county, giving the amount of the bid, and the boundaries of the sections of the road covered by each bid, and also the amount of the lowest bid, and the bidder, if the lowest bid has not been accepted.”