101 Va. 301 | Va. | 1903
delivered the opinion of the court.
One of the grounds upon which the appellees base their motion to dismiss this appeal is that the decree appealed from is a final decree rendered in September, 1900, and that the petition for appeal was not presented until more than one year afterwards. Code, section 3455.
If the decree of September 22, 1900, is a final decree, it is clear that the appeal was improvidently awarded, as the petition for it was not presented until April, 1902. By that decree the court sustained a demurrer to an amended and supplemental bill filed by the appellant, and dismissed it.. As a general rule, refusing to allow, or allowing, an amended or supplemental pleading to be filed, is not a final decree, nor a decree from which an appeal can be taken. But the rejected pleading in this case cannot be regarded as an amended bill, since it does not show, and was not intended to show, that the original bill was defective as to parties, or that there was any mistake in its allegations, or the omission of any fact or circumstance con
Neither can it be regarded as a supplemental bill, within the usual and ordinary meaning of that term. It states facts which came into existence after the original bill was filed, it is true, and in that respect possesses one of the characteristics of a supplemental bill. Glenn v. Brown, supra. But the new facts constitute an entirely new and independent cause of action between different parties, and upon which a decree might have been rendered without reference to the original bill. Such a pleading, it seems to be settled, is not a supplemental bill, and cannot be filed as such if objection be made at the proper time. See Milner v. Milner, 2 Edw. Ch. 114; Prouty v. Lake Shore, &c. Rwy. Co., 85 N. Y. 275; Riddle v. Motley, 1 Lea, 468, 472 (opinion by Judge Cooper); Straughan v. Hallwood, 30 W. Va. 274, 292, 4 S. E. 394, 8 Am. St. Rep. 29; Bird v. Stout, 40 W. Va. 43, 20 S. E. 852; Barker v. Prizer, 150 Ind. 4, 8, 48 N. E. 4; Milwaukee, Sc. v. Milwaukee, &c., 6 Wall. 742, 18 L. Ed. 856; McComb v. Lobdell, 32 Gratt. 185; Hurt v. Jones, 75 Va. 342; Hanby, Sc. v. Henritze, &c., 85 Va. 177, 7 S. E. 204.
But if it could be regarded as a supplemental bill in the nature of an original bill, was not the decree dismissing it final ?
The original bill was filed in October, 1899, by the appellant, a stockholder and director in the Pyrites Mining & Chemical Company, a corporation chartered under the laws of this State, against the company, its other stockholders and directors. The parties interested in the company did not agree as to its management, and the object of the suit was to have a receiver appointed to manage and control the affairs of the company under the direction of the court until a sale of its assets could be made; to ascertain all its liabilities, sell all its property, pay its
The amended and supplemental bill, after setting out in detail the reasons which induced the appellant to enter into the contract of June 14, the circumstances under which it was made, and the facts attending Forbes’ purchase of the stock, charges that the stock was in fact purchased for the benefit of the Guano Company and Tinsley; that the acquisition of the stock in the manner it was acquired was in plain violation of the agreement of June 14, and a fraud upon the appellant’s rights.
The prayer of the amended and supplemental bill, is that the Pyrites Mining & Chemical Company, the Pichmond Guano Company, James G. Tinsley, and W. S. Forbes be made parties defendant, be required to answer fully (but not under oath) all the allegations of the amended and supplemental bill; that Forbes be held to be a trustee for the appellant as to the stock purchased by him, and be required to deliver it up on the payment of the consideration paid by him, or be required to take payment for the same under the contract of June 14 in ore as therein stipulated, and that the parties thereto may be required to perform their contracts and be held liable for all damages that may result to the appellant and his mining plant by reason of their violation and failure to perform their contracts; that an account of said damages be taken, or an issue out of chancery be directed, to ascertain the amount of such damage, and for general relief.
None of the defendants to the original bill are made parties defendant to the amended and supplemental bill, except the Pyrites Mining & Chemical Company, and no relief is asked against any of the defendants to the original bill. Neither the Pichmond Guano Company, Tinsley, nor Forbes is a party to
Where two cases are heard together for convenience, a de-. cree dismissing one of them and continuing the other for further actio'n is final as to the case dismissed, and if the party prejudiced by such dismissal fails to take an appeal within a year, as provided by statute, his right of appeal is lost. Home Building Co. v. London, 98 Va. 152, 156, 157, 35 S. E. 362.
There is no reason that we can see why the same rule should not apply to the dismissal of such an amended and supplemental bill as was filed in this case.
If the decree appealed' from were not, as we have held, a final decree, it is not an appealable interlocutory decree. It does not dissolve an injunction or require money to be paid or the .possession of title of property to be.changed; nor is it> an interlocutory decree adjudicating the principles of the cause. Code, section 3454. It does pass upon the sufficiency of the appellant’s supplemental pleading, and dismisses it. But that is clearly not an interlocutory decree adjudicating the principles of the cause, from which an appeal lies, within the meaning of section 3454 of the Code.
The decree appealed from is either a final decree or it is a mere interlocutory decree refusing the appellant leave to’ file an amended and supplemental bill. If the former, the appeal was taken too late; if the latter, it was taken too soon, since
We are of opinion, therefore,, that, in no view of the case, can this appeal be sustained, and that it must he dismissed as improvidently awarded.
Appeal Dismissed.