Plaintiff v. Monroe

Decision Date15 July 1873
Citation6 W.Va. 441
PartiesMonroe et als v. Baetlett et als. W. W. Monroe and Virginia Monroe, his wife, and W. H. Mann, Plaintiffs and Appellees against E. T. Bartlett and Fanny Bartlett, Defendants and Appellants.
CourtWest Virginia Supreme Court
Syllabus.

1. Under the provisions of the Code of this State, a judge of a circuit court has no power or authority to render a decree in vacation, which purports to be final, as to any subject embraced by it. 2. Upon an appeal taken from such a decree as matter of right, under the provision of chapter 135 and sections 1, 2, 3 and 4 of the Code, the appellate court will not dismiss the appeal because the decree was rendered without sufficient authority by the judge, but will take jurisdiction of the cause and decree, so far, and so far only, as to reverse the decree, and remand the cause to the circuit court, there to be proceeded with, and heard and determined according to the rules and usages governing courts of equity in this State.

3. The judge having acted upon the cause prematurely, as well as without proper authority, it is not proper for the appellate court to determine and decree upon the merits of the case, especially as there are infant parties in interest, before the cause is first heard and acted upon by the court below.

The case is stated in the opinion of the Court.

Sands and Hutchinson for Appellants.

Lee, Camden and Cole for Appellees.

Raymond, President.

This is an appeal from what purports to be, in several most important and material respects, a final decree in a chancery cause, made by George Loomis, Judge of the Circuit Court of Wood county, in chambers and not in Court.

The decree was made by the Judge on the 6th day of July 1872. One of the assignments of error made by the Appellants, is that the decree was entered at chambers. The judge of a circuit court may grant and dissolve injunctions, appoint special receivers in a certain class of causes, and may also in vacation, direct any proper account to be taken in a cause, in a court of his circuit &c. But a judge has no authority to make any final decree, in a pending cause, during vacation. At one time in Virginia, a judge of a circuit or chancery court was not authorized by law to dissolve injunctions during vacation, and during that time the chancery court for the city of Richmond, during term, made an order dissolving a pending injunction, but by another order, made during the same term, directed the order of dissolution not to go out. After the term was ended, and during vacation, the chancellor made this order; 'There is no ground which I am able to discover for the interference of a court of equity. The case, as it seems to me, was most clearly mistaken, and regarding the order for the injunction as improvident, the dissolution of it at last term was correct, and a copy of the order for it may now go out." In this case it was held by the Court ol Appeals of Virginia that; "It is an irregular proceeding in a chancellor to dissolve an injunction in court, with a direction that the order of dissolution should not go out; and then, in vacation, to direct that the order should go out. From such an order an appeal lies to the Court of Appeats." See case of Randolph vs. Randolph, 6 Rand., 194. In this case Judge Carr said; "From this, it would seem, that the order of dissolution was given in court, but its operation suspended by another order, till the case should be considered in the vacation following, and the mandate revived which should give effect to the whole. Had the chancellor the power to act upon the case in vacation? That he cannot dissolve an injunction in the country is clear. That must be done in court. Yet is not this order, made at Needham, in effect the dissolution? Is it not that, which gives life and animation to the order made in Court? Without it, the court order was wholly inefficient; the injunction, to every practical effect, not dissolved; no execution could issue; and I presume, no appeal from the order could be taken; for it was still sub judiee * * Considering this last order as the one appealed from, it may be asked, has the court the power to grant appeals from such orders. I answer, this court may grant appeals from the dissolution of injunctions; and this order (however irregular) has had this effect."

"When considering the question whether proceedings in error might, or should be brought or not, it should be remembered that there are some errors so obvious and gross, that they render the judgment void, a nullity, collaterally, or in any manner that the question may arise, without a writ of error to reverse it. But even in such case, error for the reversal of...

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25 cases
  • State v. Cruikshank, 10525
    • United States
    • West Virginia Supreme Court
    • 14 Julio 1953
    ...614, 149 S.E. 832; Cook v. Dorsey, 38 W.Va. 196, 18 S.E. 468; McCoy v. Allen, 16 W.Va. 724; Johnson v. Young, 11 W.Va. 673; Monroe v. Bartlett, 6 W.Va. 441; 49 C.J.S., Judgments, § It appears to me to be an anomaly for this Court, where a writ of error has been granted, even if granted with......
  • Mitchell v. Jensen
    • United States
    • Utah Supreme Court
    • 6 Junio 1905
    ... ... business under the firm name of the Southern Utah Mercantile ... & Lumber Company. From a judgment in favor of plaintiff, ... defendants appeal ... REVERSED ... Wm. F ... Knox for appellants ... APPELLANT'S ... The ... People, 38 Ill. 20; People v. O'Neil, 47 ... Cal. 109; Filley v. Cody, 4 Col. 109; Backer v ... Eble, 144 Ind. 287; Monroe v. Bartlett, 6 W.Va ... 441; Bruce v. Doolittle, 81 Ill. 103; McClue v ... Owens, 21 Iowa 133; Spear v. Fitchpatrick, 38 ... Iowa 127.) ... ...
  • State ex rel. George-Annese Coal Co. v. Watkins, GEORGE-ANNESE
    • United States
    • West Virginia Supreme Court
    • 12 Febrero 1952
    ...had no power or authority to render a decree in vacation 'which purports to be final as to any subject embraced by it.' Monroe et als. v. Bartlett et als., 6 W.Va. 441. To the same effect is Rollins v. Fisher, 17 W.Va. 578. The principle is further developed in the case of Kinports v. Rawso......
  • Myers v. East Bench Irr. Co.
    • United States
    • Utah Supreme Court
    • 12 Abril 1907
    ... ... Greenwood, ... Action ... by John E. Myers against the East Bench Irrigation Company ... From a judgment for plaintiff, defendant appeals ... VACATED, AND NEW TRIAL GRANTED ... Knox & ... Fennemore for appellant ... APPELLANT'S ... 246; Welch v ... People, 38 Ill. 20; People v. O'Neil, 47 ... Cal. 109; Filley v. Cody, 4 Col. 109; Backer v ... Eble, 144 Ind. 287; Monroe v. Bartlett, 6 W.Va ... 441; Bruce v. Doolittle, 81 Ill. 103; McClue v ... Owens, 21 Iowa 133; Spear v. Fitchpatrick, 38 ... Iowa 127.) In ... ...
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