Kennedy Coal Corp. v. Buck-horn Coal Corp.

• Decision Date: 18 September 1924
• Citation: 124 S.E. 482
• Parties: KENNEDY COAL CORPORATION . v. BUCK-HORN COAL CORPORATION et al.
• Court: Virginia Supreme Court

124 S.E. 482

KENNEDY COAL CORPORATION .

v.BUCK-HORN COAL CORPORATION et al.

Supreme Court of Appeals of Virginia.

Sept. 18, 1924.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Vested Right.]

Appeal from Circuit Court, Russell County.

Suit by the Kennedy Coal Corporation against the Buckhorn Coal Corporation and others. Bill dismissed without prejudice, and complainant appeals, defendants making cross-assignment of error. Modified and affirmed.

E. L. Greever, of Tazewell, and Finney & Wilson, of Lebanon, for appellant.

Bird & Lively, of Lebanon, for appellees.

CAMPBELL, J. The appellees Buckhorn Coal Company, Inc., J. W. Keene, J. F. Plaster, S. L. Vance, Kelly Vance, Fred Vance, Neely Vance, Jack Vance, A. W. Horton, J. A. Perkins, Ida Breedlove, W. H. Brown, Mary E. Dye, Frances Compton, J. M. Brown, Joe Brown, Tom Brown, Martin Brown, George Brown, Ida Walls, Rachel Compton L. K. Dye, Virginia A. Dye, Shade Ray, Hannah Dye, George R. McCall, and William Wilson insist that the appeal allowed by one of the judges of this court should be dismissed as improvidently allowed. They base their contention on the following grounds:

(a) Tho petition for appeal was not presented within the time required by law.

(b) Neither the Supreme Court of Appeals nor any judge thereof had any right or authority or power to grant appellant the appeal allowed in this cause.

(c) The appeal was granted and allowed without authority of law, and this court has no jurisdiction to hear or consider said appeal for any purpose except to dismiss it.

(d) Because the act of the General Assembly of 1923, under the provisions of which this appeal was allowed, is unconstitutional and void.

The bill of complaint was filed on the 22d day of September, 1919. On the 13th day of December, 1921, the court entered its final decree dismissing the bill and awarding costs to appellees. At the time of the entering of this decree, under the provisions of section 6337 of the Code, the appellant had twelve months in which to present its petition and the record to this court or a judge thereof in vacation for an appeal.

On February 17, 1922 (Laws 1922, c. 41), the General Assembly passed an act amending section 6337 so as to make the same read as follows:

"No petition shall be presented for an appeal from, or writ of error or supersedeas to, any final judgment, decree, or order, whether the commonwealth be a party or not, which shall have been rendered more than six months before the petition is presented, " etc.

Thereafter, on the 30th day of August, 1922, appellant presented its petition praying for an appeal, which was refused, as shown by the following memorandum entered on said record:

"Final decree was entered December 13, 1921, more than six months before the petition was presented, and the appeal is barred by limitation."

Thereafter the General Assembly convened in special session in 1923 (chapter 136), and passed an act, reading in part as follows:

"Jurisdiction is hereby conferred upon the Supreme Court of Appeals, or any one of the judges thereof, in vacation, to consider petitions for appeals from, or writs of error or supersedeas to, all decrees, judgments, and orders which could have been considered by it or him during the period commencing on the eighteenth day of June, nineteen hundred and twenty-two and ending on the eighteenth day of December, nineteen hundred and twenty-two, if the acts of the General Assembly approved February seventeenth, nineteen hundred and twenty-two, and March fourteenth, nineteenhundred and twenty-two, amending sections sixty-three hundred and thirty-seven and sixty-three hundred and fifty-five, respectively, of the Code of Virginia, had not been enacted.

"The court or judge, to whom a petition is presented under this act, if of opinion that the decision complained of is not plainly right and ought to be reviewed, shall allow an appeal or writ of error, as under existing law * * * provided, that such petition be presented within six months from the day on which this act takes effect.

"Nothing in this act contained shall be construed as authorizing such court or any judge thereof to allow an appeal or writ of error or supersedeas in any case where a petition therefor has been heretofore rejected for any cause other than the expiration of the time limits prescribed by the acts aforesaid, " etc.

On July 21, 1923, the appellant again presented the petition praying for an appeal, which was allowed by one of the judges of this court; the date on which it was presented being within six months from the time the act of 1923 went into effect.

The question here presented is whether or not the act of the General Assembly of 1923 is a valid exercise of the legislative power.

That the Legislature, within certain limitations, may alter and control remedies is established law.

In Martin v. South Salem Land Co., 94 Va. 36, 26 S. E. 592, Judge Buchanan, delivering the opinion of the court, said:

"The Legislature within certain limitations may alter and control remedies by which litigants assert their rights in the courts, but when the litigation has proceeded to judgment or decree upon the merits of the Controversy, it has passed beyond its power."

That is to say, the Legislature is without power to divest one of a vested constitutional right.

The further inquiry, therefore, is, Did the appellees have a vested right under the decree entered in this cause? If they have by virtue of the decree acquired a vested right, it must be concluded that the statute of 1923 is repugnant to section 11 of the Constitution of Virginia, which provides in part "that no person shall be deprived of his property without due process of law"; and that it also violates section 58 of the Constitution of Virginia as to the impairment of the obligation of a contract.

The act in question, in our opinion, has no reference to rights, but is dealing strictly with remedies. The limitation for an appeal is purely statutory. The Constitution does not in any way deal with the period in which an appeal shall be applied for.

After a careful consideration of the authorities cited by the appellees, we do not think they apply to this case.

In Ratcliffe v. Anderson, 31 Grat. (72 Va.) 107, 31 Am. Rep. 716, the facts are that in the year 1866 Anderson obtained a judgment by default against Ratcliffe for the sum of $300 in the circuit court of Fairfax county on the 4th day of February, 1S74. More than seven years after the judgment was rendered Ratcliffe filed his petition in said circuit court, asking the court to reopen said judgment and scale the amount of the same according to the depreciation of Confederate money; he alleging in his petition that the bond upon which the judgment was rendered was given for Confederate currency. This petition was filed under the General Act of the General Assembly approved March 25, 1873 (Acts 1872-73, c. 219), and provides:

"Where any judgment or decree has been recovered for a specific sum or for damages between the said 1st day of January, 1862, and the said 10th day of April, 1865, or shall have been recovered after the said 10th day of April, 1865, and before the 3d day of March, 1870, or if any judgment * * * shall have been rendered * * * by default * * * and such judgment or decree remain unpaid, it shall be lawful for the courts, in a summary way, ou motion, after ten days' notice, either before or after the issue of execution, to fix, settle and direct at what depreciation or how the said judgment or decree shall be discharged, " etc.

Judge Christian, delivering the opinion of the court, said:

"It is under this provision of the act bf March, 1873, that it is proposed to reopen and annul in whole or in part a judgment rendered by a court of competent jurisdiction in favor of the appellee in November, 1866.

"I am of opinion that this cannot be done, and that the act of Assembly above quoted is not only an attempted invasion of judicial authority, but is in contravention of that provision of the Constitution of the United States and of this state which declares that the state shall pass no law 'impairing the obligation of a contract.' "

In the case cited the Legislature undertook to uproot a right which had been "vested" for seven years. This, of course, could not be done.

In Griffin's Ex'r v. Cunningham, 20 Grat. (61 Va.) 31, cited by appellees, the court in construing an act called the enabling act, which authorized the Court of Appeals, organized under the Constitution then in force, to rehear and affirm or reverse the decrees made by the judges of what was known as the Military Court of Appeals, held the act invalid and that the court had no authority to rehear such cases. The basis for this decision is that the judgments rendered by the Military Court were valid judicial acts, and vested rights had attached thereto. In all the authorities cited the right had become vested.

Now, what is a vested right? Without reference to a dictionary definition we would define it as a right, so fixed, that it is not dependent on any future act, contingency, or decision to make it more secure. Testedby this definition, we are of the opinion that the appellees had no such vested right as is contemplated by the decisions relied on. The right of appellees at the time of the rendition of the judgment of the court contained in the decree was not fixed in the sense that it was settled. It was an inchoate right, which would become vested upon the happening of one of two events, viz., an affirmance of the decree of the trial court by the Supreme Court of Appeals, or by the expiration of the period allowed at the time in which to take an appeal.

In this cause the situation of the parties remains the same. No conveyances have been made; no money paid out; no hardship will be worked by retaining the same for final disposition. The motion to dismiss must be overruled.

The bill of complaint filed in this cause...