Steenrod's Adm'r v. W. P

• Decision Date: 22 November 1884
• Court: West Virginia Supreme Court
• Parties: Steenrod's Adm'r v. W. P & B. R. Co.

25 W.Va. 133

Steenrod's Adm'r

v.W. P & B. R. Co.

Supreme Court of Appeals of West Virginia.

Submitted June 6, L884.

Decided November 22, 1884.

1. An appeal from a final decree by a party entitled to appeal therefrom brings with it for review all the preceding interlocutory decrees, out of which any of the errors complained of in such final decree have arisen. (p. 134.)

2. An appeal may be taken from an interlocutory order overruling a demurrer, by which the principles of the cause are adjudicated, but not until after a decree has been entered carrying those principles into effect. (p. 135.)

3 If, however, in such case the appellant complains not only of the error committed in such interlocutory order, but also of errors in the subsequent decrees, independent of those resulting merely from giving effect to such erroneous order, he can not appeal from such order unless he is also in a condition to appeal from such subsequent decrees. (p. 135.)

4. Where a defendant in a chancery suit appears and demurs to the bill and his demurrer is overruled and a rule is given him to answer which he fails to do, and thereafter a decree is entered in the cause granting the relief prayed for in the bill, and such defendant obtains an appeal to this Court from said decree without having moved in the court, which rendered it, to have the errors complained of corrected and assigns and complains of errors in said decree other than those resulting from the overruling of his demurrer. HELD:

This is a decree on a bill taken for confessed and this Court will not entertain the appeal but will dismiss the same as having been improvidently awarded. (p. 136.)

The facts of the case are set out in the opinion of the Court.

H. M. Russell and D. Lamb for appellant.

Caldwell & Caldwell for appellee.

Snyder, Judge:

Suit in equity brought January 29, 1880 in the circuit court of Ohio county by Peter W. Bosley, administrator, with the will annexed of Daniel Steenrod, deceased, against the Wheeling, Pittsburg and Baltimore Railroad Company and the heirs at law of said Steenrod, to enforce the specific ex cution of a contract between the Hempfield Railroad Company and the plaintiff's testator for the sale of a strip of land taken by the former for the use of its road through the lands of the latter and for the damages to the residue ot the tract arising from the construction of said road over the said lands, which said road is now the property and in the possession of the Wheeling, Pittsburgh and Baltimore Railroad Company as the successor of the Hempfield Railroad Company which long since became insolvent and has ceased to exist.

The defendant, the Wheeling, Pittsburg and Baltimore Railroad Company filed a general demurrer in writing to the plaintiff's bill and on December 10, 1883, the court entered an order overruling the demurrer, stating therein that the cause assigned for said demurrer was that the suit should have been brought by the heirs of the said Steenrod and not his administrator. Subsequently, on January 9, 1884, the said company having failed to answer the bill as required by a rule awarded against it upon the overruling of its demurrer, the court entered a decree granting the relief prayed for by the bill and ordering the sale of the strip of land taken and used as aforesaid; and from this decree the said Wheeling, Pittsburgh and Baltimore Railroad Company obtained the present appeal.

In Beard v. Arbuckle. 13 W. Va. 732, it is stated that "The petitioner for an appeal, supersedeas or writ of error ought to indicate to the court in his petition with distinctness to what decrees or judgment he prays for an appeal, supersedeas or writ of error, as the case may be;" and the attention of counsel is therein called to this rule and its observance specially requested.

The intelligence of the counsel who prepared the petition for the appeal in this case, and their well known habit of observing strictly the rules of practice in this Court, leave no doubt on my mind that in the preparation of the petition in this case they did not overlook said rule but that they intended just what they did; that is, to ask for an appeal from the decree of January 9, 1884, and not from the order of December 10, 1888, overruling the demurrer to the bill. If the said decree is appealable then the appeal from it necessarily brings up for review the interlocutory order of December 10, 1883; but if said decree is not appealable, then, of course, it could not have any effect on the said order. Camden v. Haymond, 9 W. Va. 681.

According to our statute an appeal will lie in any case in chancery wherein there is a decree or order "adjudicating the principles of the cause." Acts 1882, chapter 157, section 1, page 505. And in such case it is immaterial whether or not such is technically a final decree or order Core v. Strickler, 24 W. Va. 694. Thus where a demurrer to a bill is overruled by an interlocutory order, which settles the principles of the cause, the demurrant may appeal from such order alone, but not until after a decree has been entered carrying into effect the principles thus adjudicated by such order overruling the demurrer. The reason tor denying an appeal from such order without waiting for the final decree is, to prevent the inconvenience and expense of successive appeals in the same cause. The same court has the power, before the final decree, to correct any error it may have committed and thus remove the cause for an appeal, or it may commit other and additional errors in the subsequent orders and decrees entered in the cause which the party prejudiced thereby may desire to have reviewed. It is, therefore, proper and right; that the law denying appeals from interlocutory orders, even though such orders may settle the principles of the cause,, until alter those principles have been enforced by a final decree, should be strictly adhered to and observed as a rule of convenience as well as a matter of safety and justice to the parties litigant Laidley v. Kline, 21 W. Va. 21.

If after the final decree the party prejudiced by such interlocutory order has no complaint except such as resulted directly from such order, he may appeal from such order although he is not in a condition to appeal from the final decree which carries into effect the principles adjudicated by such order. But if he complains not only of the error committed in such order, but also of errors in the subsequent decree, independent of those resulting merely from giving etlect to such erroneous order, then he cannot appeal from such order unless he is also in a condition to appeal from the final decree; because to allow him to do so would be to permit him to appeal a cause in which the court would have...