6 W. Va. 441 | W. Va. | 1873
This is an appeal from what purports to be, in several most important and material respects, a final decree in a chancery cause, made by George Loomis, Judge of the Circuit Court of Wood county, in chambers and not in Court.
The decree was made by the Judge on the 6fch day of July 1872. One of the assignments of error made by the Appellants, is that the decree was entered at chambers. The judge of a circuit court may grant and dissolve injunctions, appoint special receivers in a certain class of causes, and may also in vacation, direct any proper account to be taken in a cause, in a court of his circuit &c. But a judge has no authority to make any final decree, in a pending cause, during vacation. At one time in Virginia, a judge of a circuit or chancery court was not authorized by law to dissolve injunctions during vacation, and during that time the chancery court for the city of Richmond, during term, made an order dissolving a pending injunction, but by another order, made during the same term, directed the order of dissolution not to go out. After the term was ended, and during vacation, the chancellor made this order; ‘There is no ground which I am able to discover for the
“When considering the question whether proceedings in error might, or should be brought or not, it should be remembered that there are some errors so obvious and gross, that they render the judgment void, a nullity, collaterally, or in any manner that the question may arise, without a writ of error to reverse it. But even in
Upon examination of the authorities cited we think we have jurisdiction, and should take cognjzance of the cause upon the appeal so far as to consider the decree, and reverse it, because not made and entered in open court. We also think as the cause was not heard in open court, and the decree there enterd, that the cause should be treated by us, after reversing the decree appealed from, as though it was before us without having been determined or'passed upon by the Circuit Court of Wood county, as to the matters decreed in said decree. Each party is entitled to be heard before the Circuit Court upon the questions involved in the cause,- and to have the judgment of the Court thereon after such hearing. For ought we can see, by the next term of the Circuit Court of Wood county, after this decree was rendered and entered, the cause might have been changed materially by the taking and filing of additional testimony. This, either party had the right to do prior to the court, but of this right each party has been deprived, so far as we can see by the record, and we must go by the record, especially as there are infant parties deeply interested in the determination of the suit. If we were to examine this cause and determine it upon its merits we might do some of the parties great injustice, as it would prevent them from taking testimony which they have the right to take, if they choose, before the hearing in open court. Besides
The decree of the 6th of July 1872, which is appealed from, must therefore be reversed with costs to the Appellants. And this Court proceeding to render such decree ns the Court below shouldhave rendered, orders, adjudges •and decrees that the cause be remanded to the Circuit ■Court of Wood county there to be proceeded with, and heard and determined according to the rules and usages governing courts of equity in this state.