Harris v. Hauser

26 W. Va. 595 | W. Va. | 1885

Green, Judge:

The statement of this case shows the character of the controversy involved in the cause ; and it also shows, that the court below has entered no final decree in the cause, nor adjudicated any one principle involved in the cause, nor dissolved nor refused to dissolve the injunction, which has been awarded, nor entered any decree requiring money to be paid or real estate to be sold. There can therefore be no pretence for this Court to take jurisdiction to review any action, which the court below has taken, as none of these actions of the court below can possibly constitute a ground for air appeal under ch. 157 sec. 1 of Acts of 1882, unless the last decree of the court could be regarded as “requiring the possession or title of the property to be changed” which is one of the grounds named in the seventh subdivision of said section as constituting a ground for an appeal. I am by no means satisfied, that the statute by the words “the possession or title of the property to be changed” does not mean the title or possession of real estate to be changed ; for just before using these words it had spoken of real estate tobe sold. But if for the sake of argument I admit that this phrase in the statute means “the possession or title of property real or personal to be changed,” it would still seem to me clear, that in this case this Court could not take jurisdiction uuder the statute. The property spoken of in this order is the lumber named in the affidavit. Now there is no question, but that this lumber was legally in the possession of Hauser, when the order was made. There is a dispute as to the time, when Hauser’s possession and control of the lumber under the contract between the parties ceased. But it is clear on the face of the contract and is not and could not be disputed by the plaintiff, that Hauser’s possession and control did not cease, till the said lumber was placed upon the cars at Silver Bun Tunnel, though the title to said lumber is claimed by the plaintiff to have been in him at all times both prior to and after its being thus placed on the cars. This is the language of the bill on that subject:

“Tour orator avers and charges that he, your orator, was the sole owner of said lumber sawed under said contract, that said Hauser’s duties and control over said lumber ceased and determined when he delivered and placed said lumber free on board the cars at said Silver Bun Tunnel.”

As this lumber had not been thus placed upon the cars, when this last order was made directing~W. B. Hawkins as receiver to take possession of it and make sale tliereoi, it is obvious, that Hauser was in the possession of it; and he not only consented to but asked this order to be made. Of course he could not complain of it. Harris the plaintiff can not appeal from it, because this order does not change his possession of this property he having never had any possession of it. It matters not then how liberal our construction of this section of the act conferring the right of appeal to this Court may be, it can not confer the right on the plaintiff, Harris, who was not deprived of the possession of any property by this or by any other order of the court below.

The truth is obvious, that the plaintiff, Harris, insisted, that under the proper construction of the contract of September 7, 1882, and the admitted facts he was entitled to an order or decree directing the $528.92, which was or had been in the hands of Bew, Spencer & Co., to be paid over to him without any ascertainment of the balance which might be due to Hauser for his services. The court without determining, whether he had this right or not, and without settling the principles of the cause thought proper to refer the cause to a commissioner to take and settle an account between the parties. It may well be, that this commissioner’s report may show’ that the plaintiff: is entitled to the whole of this $523.92, as would be the case beyond controversy, if it turned out, that he was not indebted to the defendant Hauser, and for anything I say now, it may be he is entitled to it in any event, as he claims. But until the court below has decided this point and adjudged the principles of the cause, this Court is clearly not entitled to take jurisdiction. And it is not for us in this stage of the cause to say, whether the court below erred in overruling the exceptions to the special replication or in appointing a receiver. Though all these orders -were such as ought not to have been made, as claimed by appellant’s counsel, they could not in the present state of the ease be by us reviewed or altered.

We are an Appellate Coui’t, whose business it is to review the decrees of the circuit courts, when the cause is substantially ended in those courts. It was never designed or intended, that this Court should take supervision of the circuit courts during the progress of the causes, and, if they failed to adjudge the principles of the cause, when one of the parties to the suit thought, that such principles might and ought to be adjudicated, or if they made mistakes during the progress of the causes, interpose and correct such errors and adjudicate the principles of the canse, before the court below had decided them. This would not be appellate jurisdiction ; and if such duties were by law imposed upon this Court, it would be simply impossible to perform them. It is as much as can be done by this Court, to decide all the causes in this State, in which the courts below may have erred in their final judgment or decree or in adjudicating the principles of the cause. We could not possibly supervise all these courts during the progress of the suits before them ; for in so doing it would doubtless often happen, that fully a dozen appeals would betaken at different times in the same cause.

I am therefore of opinion, that the appeal and supersedeas were improvidently awarded, and that the appeal must be dismissed, and the appellee, J. M. Hauser, recover of the appellant, Thomas A. Harris, his costs in this Court expended

Dismissed.