29 W. Va. 131 | W. Va. | 1886
Counsel have argued this case only on its merits, no question as to our jurisdiction having been raised. But it' is our duty, unless the record shows affirmatively, that we have jurisdiction, to decline to consider the same, whether the parties desire or do not desire us to consider the case on its merits. If we should consider it, the parties might be bound by our decision (Henry v. Davis, 13 W. Va. 231, pt. 6 of Syll.; Newman v. Mollohan, 10 W. Va. 488); but this would result from the conclusive presumption, that the Court before taking jurisdiction of a case is satisfied, that the case is one, in which the Court has jurisdiction; and the Court having so decided in effect, this decision like any other decision of this Court is final and conclusive. The most formal consent of parties can give us no right to assume jurisdiction not conferred on us by law.” Unless under the laAv we have jurisdiction in this case, to assume it would be most mischievous as well as wrongful; for, if we have no jurisdiction and yet assume it, we shall be bound to assume jurisdiction in all like cases even against the protest of the ap-pellee. Thus the parties to this cause would be in effect making a law binding on all suitors- in the State; and, as other parties to other suits might change or enlarge our appellate jurisdiction at their pleasure, the result would be to entirely unsettle the law as to what is an appealable decree. This would be exceedingly mischievous. Statute-law as interpreted by this Court, provides that no appeal can be taken after the expiration of two years from the date of the rendition of the decree, where the samó has been rendered since March 27,1882; nor can such a decree be reviewed by
Prior to the Code of Virginia of 1849 there was often much difficulty in determining, whether a decree was or was not appealable, as at that time only final decrees were appeal-able. There was great difficulty in settling upon any rule of easy application, whereby it could be determined in the almost infinite variety of decrees, whether a particular decree was or was not a final decree. The difficulty is well illustrated by the discordant views of the judges in Cocke v. Gil-pin, 1 Rob. 20. And the great difficulty of the subject and the diversity of opinion thereon can be learned by examining the nineteen Virginia causes referred to in Manion v. Fahy, 11 W. Va. 493. In the code of 1849 it was provided that “a person who is a party to any case in chancery, wherein there is a decree or order dissolving an injunction or requiring money to be paid or the possession or title of property to be changed or adjudicating the principles of the cause, may present a petition for an appeal from the decree or order ” with certain specified exceptions. (See also Code of Va. of 1860, chapter 182, sec. 2, p. 145.)
The provisions for allowing appeals to decrees adjudicate ing the principles of the cause first appear in the Code of 1849. The principad object of this provision was, it seems to me, to make it less difficult to determine, whether a particular decree was or was not appealable, the law prior to that showing, that, when the right to appeal from a decree existed, only because the decree was a imal decree, it was very often difficult to determine, whether or no the particular decree
Our law touching this subject is to be found in Am. Code W. Va. (Warth) p. 745, chap. 135, sec . 1, ¶ 7 as follows:— “In any case in chancery, wherein there is a decree or order dissolving or refusing to dissolve an injunction or requiring money to be paid or real estate to be sold or the possession or title of property to be changed or adjudicating the principles of a cause,” a party to it may obtain an appeal. It will be observed, that every decree refusing to dissolve an injunction is under this provision appealable. This provision was inserted in our law, doubtless because the decision in Grattan above cited rendered such an order in some cases appealable and in other cases not, and because the legislature considered it to be desirable, that there should be as
Let us now consider what interpretation we should give to the words in our statute quoted above:. “A decree adgudi-cating the principles of a cause. ” To interpret this phrase correctly, it is important, that we should have a correct view of the policy with reference to appeals, which had always prevailed in Virginia up to the time, when these words were introduced into the statute-law of that State. The policy of Virginia was thus stated by Judge Baldwin in Cockee v. Gilpin, 1 Rob. 34: — “The result of our legislative policy on this subject has been, that as a general rule the jurisdiction of the supreme appellate tribunal does not begin, until that of the inferior court has terminated ; then an appeal properly allowed brings into discussion before the appellate court all the previous proceedings ip the cause; and that pending an appeal the further cognizance and proceedings of the court below are suspended in relation to any question involved in the cause, so far as its merits are concerned. In these respects we have departed from the rules of English chancery. There the decisions of the Chancellor, which settle principles or give relief to any extent, may be brought at once before the House of Lords, if the decree or order has been enrolled: then the discussion in the appellate forum is confined to the decree or order appealed from arid can not be extended to any previous proceeding, however much the justice of the case may require it, without a formal extension of the appeal (2 Smith Oh’y Pr. 41; Bucher v. Dillon, 5 Bligh 714); and then the appeal does not suspend proceedings upon the decree without a special order, which is rarely granted [2 Smith Ch’y Pr. 68, 69; Willan v. Willan, 16 Ves. 216; Walburn v. Ingolby, 1 Myl. & K. 61, (6 Cond. Eng. Ch’y 498)].” This difference between the English law and our law and the reasons, upon which it is based, are fully explained in Manion v. Fahy, 11 W. Va. 490.
Was this introdection into the Virginia Code of 1849 of
In Camden v. Haymond, 9 W. Va. 680, this Court decided to be not appealable a personal decree of the Circuit Court of Harrison county against the defendants, which declared, that a debt of $10,307.52 not payable till a future time was owing from the defendants and was a lien on .a certain tract of land
In the ease of Laidley v. Kline, 21 W. Va. 21, this Court decided, that, when an account had been settled before a commissioner, and various exceptions had been filed to the report, and the court by its decree had sustained some of these exceptions and overruled others, such decree is not an appealable decree, though it might have settled the rights of some of the parties or quasi parties to the cause.
In Hill v. Als, 27 W. Va. 215, this Court decided, that “When the record in a cause shows, that the pleadings present two or more controversies between th.e plaintiff and different defendants, only one of which was passed upon by the Circuit Court, and the other was left undecided, this Court will dismiss the appeal as improvidently awarded.” In that case this Court expressly held : — “The; provision of the statute authorizing appeals to this Court in chancery causes, when there is a decree ‘adjudicating the principles of the cause,’ authorizes such appeal, only when the decree appealed from adjudicates all the controversies between the parties raised by the pleadings or otherwise.”
When this law as thus expounded is applied to the case before us, it is perfectly obvious, that the decree of July 2, 1883, appealed from is not an appealable decree. The bill, as appears from the statement of its contents, which I have made, has three principal objects in view besides a number of others not deemed so important by the plaintiff. These three objects were the enforcement of a vendor’s lien on a tract of land of 142 acrgs sold £o Musgraye, the enforcement
It is only necessary to understand the objects of this suit and the matters, which it called upon the court to deter
Appeal Dismissed.