Plaintiff v. Monroe
Decision Date | 15 July 1873 |
Citation | 6 W.Va. 441 |
Parties | Monroe 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. |
Court | West Virginia Supreme Court |
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; In this case it was held by the Court ol Appeals of Virginia that; See case of Randolph vs. Randolph, 6 Rand., 194. In this case Judge Carr said;
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State v. Cruikshank, 10525
...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......
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...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......
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