86 Va. 201 | Va. | 1889
delivered the opinion of the court.
The only facts necessary to be stated, in the aspect in which this case is now presented, are these: At November rules, 1887,
Another object of the hill was to annul and set aside a deed from Mrs. Julia A. Lancaster to John J. Lancaster, dated Hovomber 18, 1882, under a power of appointment in a deed executed to her by her husband, the said T. C. Lancaster, on account of the alleged fraudulent and improper conduct of the said John J. Lancaster in procuring himself to he designated as the recipient and appointee of the said property.
The objects of the hill were to obtain a decree for the interest, or amount, that might be found due from the estate of John J. Lancaster to the estate of T. 0. Lancaster, on account of the shares of the said T. C. Lancaster in the profits of a certain hanking business carried on by the said John J. Lancaster in the state of Hew York, and to have the following accounts, namely: an account of the proceeds of certain sales of property so conveyed, alleged to have been made by John J. Lancaster; an account of the rents and profits of certain of the real estate mentioned in the hill as having been conveyed by the said T.
To this bill the foreign representatives of John J. Lancaster filed a plea in abatement, which was sustained by the court, upon the ground that the plaintiffs had failed to make out a case entitling them to sue a foreign administrator in the said circuit court; and thereupon the bill was dismissed as to such representatives.
The cause having been remanded to rules, with leave to amend the bill, subsequently, to wit: at March rules, 1888, the plaintiffs, the personal representatives of T. C. Lancaster, deceased, certain of the heirs of the said T. 0. Lancaster, and the administrator of one of the said heirs who had died, filed their amended bill against the personal representative of John J. Lancaster, in Virginia, whom they had, pending this litigation, caused to be appointed, and against the widow of T. 0. Lancaster, and the other heirs of T. C. Lancaster, who had not been named as plaintiffs, and the infant heirs of John J. Lancaster, who are the appellants here.
In this amended bill, the allegations and the prayers of the original bill are reiterated, the only new allegations being that since the filing of the said original bill, the will of John J. Lancaster, made in Yew York, the place of his residence at the time of his death, had been admitted to probate in the state of Virginia, and that, letters of administration had been granted thereon.
To the amended bill infant children of John J. Lancaster, by their guardian ad litem, filed their demurrer, which, being overruled, they took this appeal.
It. thus plainly appears that the first, and perhaps, the only question we have to decide, is whether an appeal lies from such a decree. For unless this inquiry can be determined affirmatively, the court has no election, although, if it were permitted
ISTow that the jurisdiction of this court in relation to such appeals is purely statutory, there can be no doubt. Elder’s Ex’ors v. Harris, 75 Va., 68. Does, then, the present case come within the Avords or purview of the statute? This is the inquiry. The statute, sec. 2, ch. 178, Code 1873, the language of Avliich is identical Avitli sec. 3454 of the Code of 1887, provides that any person, avIio is a party to any case in chancery AAdierein there is a decree or order dissolving an injunction, or requiring money to he paid, or the possession or title of property to be changed, or adjudicating the principles of the cause, or to any cíaúI case Avherein there is a final judgment, decree, or order, may present a petition, if the case be in chancery, for an appeal from the decree or order.
It is not pretended that this is a final decree, or that it belongs to either of the classes first enumerated in the statute, but it is insisted, AAdth much earnestness and plausibility, that the decree in the present case is a decree adjudicating the principles of the cause.
The theory of the appellants is that the effect of the action of the court is to declare that the correct decision of the case is dependent upon an account of the alleged partnership and to compel such an account. But in this we think the appellants are mistaken. The effect, at most, of the overruling of the demurrer is to say that in the opinion of the court, if the plaintiffs establish the case made in their bill, they may be entitled to the relief sought therein.
It is difficult, if not impossible, to define exactly what is meant by adjudicating the principles of the cause in such a way as to fit eA^ery case; but it must mean that the rules or methods by which the rights of the parties are to be finally AAorked out have been so far determined that it is only neces
But apart from the special circumstances of this case, the court is of opinion that a decree of this kind does not fall within the purview of the statute.
While I can find no case in which the question has been adjudged or even raised in this state, that is a circumstance in itself from which, considering the multitude of instances which have occurred in which it must have been to the interest of both parties to have had an appeal from just such decrees, that the opinion of the bar is, and has been, adverse to the pretension.
I find, however, that in- West Virginia, where the statute is doubtless similar to our own, that the question has been directly adjudged, and in accordance with this -view. Buchler, Bowright & Co. v. Cheuveont Co., 15 W. Va., 480.
It follows, as the result of these views, that the appeal must be dismissed as having been improvidently awarded.
Appeal dismissed.
