Burch v. White

• Decision Date: 11 December 1824
• Citation: 24 Va. 104
• Parties: Burch & c. v. White
• Court: Virginia Supreme Court

24 Va. 104

Burch & c. v. White

Supreme Court of Virginia

December 11, 1824

White obtained a judgment in the Superior Court of Nelson county against Burch, affirming a judgment of the County Court. At the subsequent term of the Superior Court, the following entry was made: " On the motion of the appellants by their attorney, and it appearing to the satisfaction of the Court, that at the last term of this Court, when the judgment of the County Court was affirmed, they, the said appellants prayed an appeal from the said judgment, to the Court of Appeals, which was allowed them, upon their giving bond and security according to law, which said bond and security was accordingly given and filed in open Court, during the term aforesaid; but that the clerk of the Court has omitted to enter, on the records thereof, the appeal so granted; it is ordered that an appeal be now allowed the said appellants from the judgment aforesaid, and that this order be regarded as an order of the last term, when it should have been entered." The appeal was accordingly brought up to the Court of Appeals, and docketed.

The appeal is therefore dismissed, as improvidently awarded.

Wickham for the appellee, moved to dismiss the appeal as improvidently allowed.

Johnson for the appellant, opposed the motion.

OPINION

Whether an appeal will lie from any judgment, is a question of law, to be decided by the Court; and the only evidence of what is decided by the Court, is the record. In this case, the orders were read, in which no appeal was allowed, nor is any thing said of the appeal bond. No evidence of any other character than the record, ought to have been received by the Court. The filing of a bond in the office, is no proof that it was received by the Court, or that an appeal had been granted. The omission to enter it by the clerk, cannot be considered a clerical error, until it is shewn by the record, that the appeal was allowed, and the bond received. The case of Bent v. Patten, 1 25, is in principle, like this case. The rate of interest, in that case, was adjudged to be matter of law; and the neglect to enter it, as the Court ought to have adjudged it, was not considered a clerical error. The 108th section of the act of Jeofails, 1 Rev. Code, 512, does not apply. There is nothing in the record to amend by. The filing of the bond with the clerk, was not in pursuance of any thing in the record, nor warranted by any act...