Salem Loan & Trust Co v. Kelsey
| Decision Date | 11 September 1913 |
| Citation | 115 Va. 382,79 S.E. 329 |
| Court | Virginia Supreme Court |
| Parties | SALEM LOAN & TRUST CO. v. KELSEY. |
Error to Law and Chancery Court of City of Roanoke.
Proceeding by the Salem Loan & Trust Company against one Kelsey. To review an order setting aside a verdict for defendant in part and denying such relief in part, plaintiff brings error. On motion to dismiss the writ of error. Motion sustained.
A. E. King and Poindexter & Hopwood, all of Roanoke, for plaintiff in error.
C. S. McNulty, of Roanoke, for defendant in error.
The defendant in error moves to dismiss this writ of error as improvidently awarded, upon the ground that no final judgment has been rendered in this case.
This is a proceeding under section 3211 of the Code to recover judgment upon three negotiable notes. Upon the trial of the cause there was a verdict for the defendant. Upon motion of the plaintiff, that verdict was set aside as to two of the notes, and a new trial awarded as to them; but the motion to set aside the verdict as to the other note was overruled, and an order entered that the plaintiff take nothing by his motion as to that note, and that the defendant recover his costs.
While by statute an appeal may be taken from certain interlocutory orders, as well as from final decrees, a writ of error does not lie, except where there has been a final order or judgment in the cause. Pollard's Code, § 3454; Gillespie v. Coleman, 98 Va. 276, 36 S. E. 377, and cases cited.
The general doctrine as to what constitutes a final order, says Judge Lewis, In Postal Tel. Cable Co. v. N. & W. R. Co., 87 Va. 349, 351, 12 S. E. 613, 614, is well stated by Prof. Minor, who says "that such an order is one which disposes of the whole subject, gives all the relief contemplated, provides with reasonable completeness for giving effect to the sentence, and leaves nothing to be done in the cause save to superintend ministerially the execution of the order." 4 Minor's Inst. 860.
This statement of the general doctrine as to what constitutes a final judgment, order, or decree seems to be fully sustained by text-writers and adjudicated cases. See 4 Am. & Eng. Enc. of Law & Pr. 65, 66, and cases cited in note; 23 Cyc. 672, 673.
In Burch, Mayor, v. Hardwicke, 23 Grat. (64 Va.) 51, it was said by Judge Bouldin, in delivering the opinion of the court, that whether a judgment or decree is final ...
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...the ruling as to Burford. The ruling as to Morris was not a final judgment to which a writ of error would lie. Salem Loan & Trust Co. v. Kelsey, 115 Va. 382, 79 S.E. 329; Hatke v. Globe Indemnity Co., 167 Va. 184, 188 S.E. The court set aside the verdict against Morris and awarded him a new......
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...is designed to have reversed upon this writ of error, which is a judgment in no sense final in its character." In Salem Loan & Trust Co. v. Kelsey, 115 Va. 382, 79 S.E. 329, Judge Buchanan states very clearly what is a final judgment to which a writ of error lies. He said: "The defendant in......
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