Brown v. Carolina

• Decision Date: 07 September 1914
• Citation: 116 Va. 597,83 S.E. 981
• Court: Virginia Supreme Court
• Parties: BROWN. v. CAROLINA, C. & O. RY. CO.

83 S.E. 981

116 Va. 597

BROWN.

v.CAROLINA, C. & O. RY. CO.

Supreme Court of Appeals of Virginia.

Sept. 7, 1914.

1. Motions (§ 59^*)—Final Ordrr—Setting Aside.

Where a final order of dismissal is made in vacation, the court at a subsequent term has no authority to reopen the case and set aside the order.

[Ed. Note.—For other cases, see Motions, Cent. Dig. §S 73-81; Dec. Dig. § 59.*]

2. Appeal and Eebob (86 66, 344*)—Writ of Error—Time—Final Order.

On August 21, 1912, the court made a vacation order quashing the service of a summons because not signed or attested by the clerk, as required by Const. 1902, § 106 (Code 1904, p. ccxxxvi), and on September 26th overruled a motion to set aside the former order of dismissal. More than a year after the entry of the vacation order, plaintiff sued out a writ of error, held, that if the vacation order was final, the writ of error was too late, and, if not final, then neither was the order denying the motion to set it aside, and was therefore insufficient to sustain the writ of error.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 329-331, 335-343, 1889-1893, 1896; Dec. Dig. §§ 66, 344.*]

Error to Circuit Court, Scott County.

Action by one Brown against the Carolina, Clinchfield & Ohio Railway Company. A judgment was rendered dismissing the suit, and plaintiff brings error. On motion to dismiss. Granted.

Former opinion (82 S. E. 733) withdrawn.

John Kee and Russell S. Ritz, both of Bluefield, W. Va., for plaintiff in error.

S. H. Bond, of Gate City, and Walter H. Robertson, of Johnson City, Tenn., for defendant in error.

BUCHANAN, J. Upon the calling of this cause the defendant in error moved the court to dismiss it upon the ground that the petition for the writ of error was presented to the court more than one year after the final order or judgment was entered in the cause. Pollard's Code, § 3474.

On the 21st of August, 1912, a vacation order, of which the following is a copy, was entered in the cause:

"An order having been entered at the last term of said court authorizing a special appearance for the purpose of making a motion to quash the writ issued in this cause and to allow the said motion to be argued before the undersigned, judge of said court, in vacation on the day fixed in said order, and said motion having been continued, by request, from said date until the 19th day of August when the parties, by their attorneys, appeared at the office of the undersigned in Lebanon, Virginia, and argued said motion and the same having been further continued to this date and said motion and the arguments of counsel having been considered and being of opinion that said writ was not issued as required by section 106 of the Constitution of Virginia, it is, therefore ordered that said writ be and it is, for reasons stated in writing, quashed. The motion of the plaintiff to amend said writ is overruled."

On the 26th of September following, the plaintiff moved the court to set aside the order of August 21st. This motion was overruled and exceptions taken to the action of the court.

By section 3427 of Pollard's Code, which authorized the court to hear the motion in vacation, it is provided that:

"All judgments, orders, and decrees so made and entered, shall have the same force and effect as if made and entered in term, except that in the case of a judgment, order, or decree for money, the same shall be effective only from the time of day at which it is received in the...