Smiley v. Provident Life &

• Decision Date: 07 November 1907
• Citation: 56 S.E. 728,106 Va. 787
• Court: Virginia Supreme Court
• Parties: SMILEY et al. v. PROVIDENT LIFE & TRUST CO. OF PHILADELPHIA.

106 Va. 787

56 S.E. 728

SMILEY et al.

v. PROVIDENT LIFE &TRUST CO. OF PHILADELPHIA.

Supreme Court of Appeals of Virginia.

Jan.17, 1907.

On Rehearing, March 21, 1907.

1. Writ op Error—Decisions Reviewable— Final Judgments—Ordering Rehearing.

Code 1887. § 3454 [Va. Code 1904, p. 1836], allows a writ of error from final judgments or orders. Held, that a writ of error cannot be awarded to an order setting aside a judgment and granting a rehearing, as it is not a final judgment.

On Rehearing.

2. Writ op Error—Decisions Reviewable —Final Judgments—Actions at Law.

Code 1887, § 3454 [Va. Code 1904, p. 1836], provides that any person aggrieved by any order in certain proceedings or any party to case in chancery wherein there is a decree or order dissolving an injunction, etc., or to any civil case wherein there is a final judgment, decree, or order, may present a petition, if the case be in chancery, for an appeal, and, if not in chancery, for a writ of error or supersedeas to the judgment or order. Held, that a writ of error in any case in law was not authorized before final judgment.

[Ed. Note.—For cases in point, see Cent Dig. vol. 2, Appeal and Error, §§ 329-331.]

3. Same—Ejectment.

Acts 1902-03-04, p. 779, c. 499, amending Code 1887, § 3454 [Va. Code 1904, p. 1836], by providing that any person aggrieved by any judgment, decree, or order in a controversy concerning the title to or boundaries of land, if not in chancery, may present a writ of error to the judgment or order, does not give a party to an action in ejectment the right to review until a final judgment has been entered in the cause.

Error to Circuit Court, Augusta County.

Action by John P. Smiley and others against the Provident Life & Trust Company of Philadelphia. From an order granting defendant's petition to set aside a judgment and for a rehearing, plaintiffs bring error.

Writ dismissed.

Braxton & McCoy, for plaintiffs in error.

J. M. Perry, for defendant in error.

CARDWELL J. This is a writ of error to a judgment of the circuit court of Augusta county awarding a new trial to one of the defendants in an action of ejectment theretofore pending and determined in that court.

The action was brought by plaintiffs in error in March, 1897, against the defendant in error (the Provident Life & Trust Company of Philadelphia), the Virginia Iron Investment Company, J. Harry Lee, and Stephen Lee to recover 20/48 interest in a tract of land situated in Augusta county, known as the "Bare Ore Bank" or the "Bare Bank Property." Several years prior to the institution of the suit the whole of the property was claimed to be owned by J. Harry Lee and Stephen Lee (claiming the surface right), and a man by the name of Joslyn (claiming the mineral right), so that Joslyn, the said Lees, and plaintiffs in error here claimed under one and the same source of title. Joslyn, bydeed duly recorded In Augusta county, conveyed his title (such as it was) to the Virginia Iron Investment Company, ' which, in turn, executed a deed of trust upon the property, conveying the Joslyn title to the defendant in error, a corporation, in trust to* secure payment of $250,000 evidenced by bonds issued by the Virginia Iron Investment Company. Upon the institution of this suit process was served upon the Virginia Iron Investment Company in person, but, it appearing that the defendant in error and the said Lees were nonresidents of the commonwealth of Virginia, the process upon them was served by order of publication duly executed and matured.

At a trial of the cause on the 31st day of May, 1889, plaintiffs in error recovered a judgment against all of the defendants for various undivided interests in said tract of land, aggregating 16/48 thereof, also for their costs, and the suit was stricken from the docket as an ended cause.

On May 10, 1901, the defendant in error filed its petition In the circuit court of Augusta county reciting the foregoing facts, denying It had ever appeared to defend the said action, and praying that the said cause be reopened and reheard, and that the judgment theretofore rendered therein be set aside and annulled. Upon a hearing on this petition, the answer of plaintiffs in error thereto and an agreed statement of the evidence, based upon the only ground of defense that plaintiffs In error were allowed to make to the petition, the prayer of the petition to rehear was granted, the judgment in ejectment set aside as to defendant in error, and it was permitted to plead or otherwise make defense to the original declaration in ejectment. It is to that judgment this writ of error was awarded.

That this court had not jurisdiction to award a writ of error to the ruling complained of, unless It Is a final determination of the rights of the parties within the meaning of a final judgment, does not admit of argument. Codes of Va. 1887 and 1904, § 3454; Lock-ridge v. Lockrldge, 1 Va. Dec. 61; Rogers' Adm'r v. Bertha Zinc Co.. 1 Va. Dec. 827, 19 S. E. 782; Tucker v. Sandidge, 11 Va. Law J. 107; Priddy & Taylor v. Hartsook, 81 Va. 67.

This ruling is not, in the opinion of the court, a final judgment within the meaning of these words. It leaves the original action of ejectment to be yet tried and...