Shirey v. Musgrave

Green, Judge : Counsel have argued this case only on its merits, no question as to our jurisdiction having been raised. But it' is our duty, unless the record shows affirmatively, that we have jurisdiction, to decline to consider the same, whether the parties desire or do not desire us to consider the case on its merits. If we should consider it, the parties might be bound by our decision (Henry v. Davis, 13 W. Va. 231, pt. 6 of Syll.; Newman v. Mollohan, 10 W. Va. 488); but this would result from the conclusive presumption, that the Court before taking jurisdiction of a case is satisfied, that the case is one, in which the Court has jurisdiction; and the Court having so decided in effect, this decision like any other decision of this Court is final and conclusive. The most formal consent of parties can give us no right to assume jurisdiction not conferred on us by law.” Unless under the laAv we have jurisdiction in this case, to assume it would be most mischievous as well as wrongful; for, if we have no jurisdiction and yet assume it, we shall be bound to assume jurisdiction in all like cases even against the protest of the ap-pellee. Thus the parties to this cause would be in effect making a law binding on all suitors- in the State; and, as other parties to other suits might change or enlarge our appellate jurisdiction at their pleasure, the result would be to entirely unsettle the law as to what is an appealable decree. This would be exceedingly mischievous. Statute-law as interpreted by this Court, provides that no appeal can be taken after the expiration of two years from the date of the rendition of the decree, where the samó has been rendered since March 27,1882; nor can such a decree be reviewed by — 141 — this Court, though an appeal should be taken from a subsequent decree based on it. If on the other hand an appeal be taken from a decree, which is not appealable, such ap^-peal must be dismissed by this Court as improvidently granted. It is therefore very important, that the legal profession should, understand, what decrees are appealable. If we should assume decrees to be appealable without due consideration, or because the parties to the suit might acquiesce in our so doing, the law would soon become so unsettled, that no lawyer could advise a client, whether any decree, which he might complain of, was appealable or not, though it might be most important to his client to receive such advice. Prior to the Code of Virginia of 1849 there was often much difficulty in determining, whether a decree was or was not appealable, as at that time only final decrees were appeal-able. There was great difficulty in settling upon any rule of easy application, whereby it could be determined in the almost infinite variety of decrees, whether a particular decree was or was not a final decree. The difficulty is well illustrated by the discordant views of the judges in Cocke v. Gil-pin, 1 Rob. 20. And the great difficulty of the subject and the diversity of opinion thereon can be learned by examining the nineteen Virginia causes referred to in Manion v. Fahy, 11 W. Va. 493. In the code of 1849 it was provided that “a person who is a party to any case in chancery, wherein there is a decree or order dissolving an injunction or requiring money to be paid or the possession or title of property to be changed or adjudicating the principles of the cause, may present a petition for an appeal from the decree or order ” with certain specified exceptions. (See also Code of Va. of 1860, chapter 182, sec. 2, p. 145.) The provisions for allowing appeals to decrees adjudicate ing the principles of the cause first appear in the Code of 1849. The principad object of this provision was, it seems to me, to make it less difficult to determine, whether a particular decree was or was not appealable, the law prior to that showing, that, when the right to appeal from a decree existed, only because the decree was a imal decree, it was very often difficult to determine, whether or no the particular decree — 142 — was final. It was supposed, that it would be less difficult to determine, when a decree “ adjudicated the principles of the cause” than it was to determine, when the decree was final. The new phraseology might incidentally enlarge the- jurisdiction of the Supreme Court somewhat; but that was not the object of the legislature. The object was to remove, as far as it was possible to do so, the difficulty of determining what were appealable decrees ; and, it seems to me, they accomplished their object, though, I presume, they did not remove alTdifficulty from the subject. It may yet be a question, whether a particular decree does or does not settle the principles of the cause. Thus under this provision of the Code of 1849, which is the same as that above quoted from the Code of 1860, in the case of B. & O. Railroad Co. v. Wheeling, 13 Gratt. 40, pt. 2 of Syll. and pp. 51-60, the Court reached the conclusion, that “an order overruling a motion to dissolve an injunction may be appealed from, if the principles of the cause are thereby adjudicated; and this, though such order is made in vacation.” — It is evident from the opinion, that whether or not an order overruling a motion to dissolve an injunction would be an appealable. order, would depend upon what might be the character of the particular case; and of course in some cases there would be a difference of opinion, as to whether such order did or did not adjudicate the principles of the cause. This provision of the Code of 1849 has ever since been a part of the statute-law both of Virginia and of West Virginia. Our law touching this subject is to be found in Am. Code W. Va. (Warth) p. 745, chap. 135, sec . 1, ¶ 7 as follows:— “In any case in chancery, wherein there is a decree or order dissolving or refusing to dissolve an injunction or requiring money to be paid or real estate to be sold or the possession or title of property to be changed or adjudicating the principles of a cause,” a party to it may obtain an appeal. It will be observed, that every decree refusing to dissolve an injunction is under this provision appealable. This provision was inserted in our law, doubtless because the decision in Grattan above cited rendered such an order in some cases appealable and in other cases not, and because the legislature considered it to be desirable, that there should be as — 143 — little uncertainty as possible on this question. So far as decrees dissolving or refusing to dissolve injunctions are concerned all doubt is removed by our statute, as it does not leave this to be determined by considering, whether such a decree in a particular case settles the principles of the cause. Let us now consider what interpretation we should give to the words in our statute quoted above:. “A decree adgudi-cating the principles of a cause. ” To interpret this phrase correctly, it is important, that we should have a correct view of the policy with reference to appeals, which had always prevailed in Virginia up to the time, when these words were introduced into the statute-law of that State. The policy of Virginia was thus stated by Judge Baldwin in Cockee v. Gilpin, 1 Rob. 34: — “The result of our legislative policy on this subject has been, that as a general rule the jurisdiction of the supreme appellate tribunal does not begin, until that of the inferior court has terminated ; then an appeal properly allowed brings into discussion before the appellate court all the previous proceedings ip the cause; and that pending an appeal the further cognizance and proceedings of the court below are suspended in relation to any question involved in the cause, so far as its merits are concerned. In these respects we have departed from the rules of English chancery. There the decisions of the Chancellor, which settle principles or give relief to any extent, may be brought at once before the House of Lords, if the decree or order has been enrolled: then the discussion in the appellate forum is confined to the decree or order appealed from arid can not be extended to any previous proceeding, however much the justice of the case may require it, without a formal extension of the appeal (2 Smith Oh’y Pr. 41; Bucher v. Dillon, 5 Bligh 714); and then the appeal does not suspend proceedings upon the decree without a special order, which is rarely granted [2 Smith Ch’y Pr. 68, 69; Willan v. Willan, 16 Ves. 216; Walburn v. Ingolby, 1 Myl. & K. 61, (6 Cond. Eng. Ch’y 498)].” This difference between the English law and our law and the reasons, upon which it is based, are fully explained in Manion v. Fahy, 11 W. Va. 490. Was this introdection into the Virginia Code of 1849 of — 144 — this provision, which is still the law of Virginia and of this State, designed to change the policy, which we had always pursued, and to adopt the English policy as given above? It seems to me most obvious, that such was not the object of this change in our law. Its main object was to render more certain, what were cvppealable decrees, not to extend them indefinitely. If, whenever any principle involved in a cause was determined, the decree determining it was appealable, as is the case in the English practice, the effect in this State would be to greatly increase the cost of litigation and to greatly prolong controversies and to impose upon this Court a sort of supervision of all the Circuit Courts during the progress of all chancery suits, which would quickly so overburden it with business, that it could not discharge its duties. But I am entirely satisfied, that this was not the object of the change in the law made in the Code of 1849. If such had been the purpose of the legislature, the language used would have been far different. Instead of the words— “a party to any cause in chancery, whenever there is a decree or order adjudicating the principles of the cause, may appeal,” something like the following would have been used: — An appeal will lie from any interlocutory order in a chancery cause adjudicating any principle involved in it. —The meaning of the words “adjudicating the principles of the cause” is adjudicating all the, principles of the cause. "When the words are so interpreted, the long established policy of the State is left undisturbed; and appeals still lie generally only after all controversies have been decided in the inferior court. The change made in our law was not intended to overthrow our established policy, but, if possible, to make more clear, what decrees are appealable, still leaving except in a few specified cases the jurisdiction with the inferior court, till it had disposed of all the principles involved in the cause. This has been our construction of our law. In Camden v. Haymond, 9 W. Va. 680, this Court decided to be not appealable a personal decree of the Circuit Court of Harrison county against the defendants, which declared, that a debt of $10,307.52 not payable till a future time was owing from the defendants and was a lien on .a certain tract of land — 145 — of one of the defendants, and which reserved a right to the plaintiff to make application for, as this Court interprets the decree, a personal decree for this $10,307.52, when, it should become due, against the defendants, because this decree on its face showed, that the court had not done all it intended to do in the cause ; and, as the future action was to be taken not simply to carry into execution the lien, which, the court had decided, existed, but to give the parties such personal decree, which would of course have been resisted, it thus appeared on the face of the decree, that all matters in controversy were not by it finally disposed of, and therefore, as it did not settle all the principles of the cause, it could not be appealed from. In the ease of Laidley v. Kline, 21 W. Va. 21, this Court decided, that, when an account had been settled before a commissioner, and various exceptions had been filed to the report, and the court by its decree had sustained some of these exceptions and overruled others, such decree is not an appealable decree, though it might have settled the rights of some of the parties or quasi parties to the cause. In Hill v. Als, 27 W. Va. 215, this Court decided, that “When the record in a cause shows, that the pleadings present two or more controversies between th.e plaintiff and different defendants, only one of which was passed upon by the Circuit Court, and the other was left undecided, this Court will dismiss the appeal as improvidently awarded.” In that case this Court expressly held : — “The; provision of the statute authorizing appeals to this Court in chancery causes, when there is a decree ‘adjudicating the principles of the cause,’ authorizes such appeal, only when the decree appealed from adjudicates all the controversies between the parties raised by the pleadings or otherwise.” When this law as thus expounded is applied to the case before us, it is perfectly obvious, that the decree of July 2, 1883, appealed from is not an appealable decree. The bill, as appears from the statement of its contents, which I have made, has three principal objects in view besides a number of others not deemed so important by the plaintiff. These three objects were the enforcement of a vendor’s lien on a tract of land of 142 acrgs sold £o Musgraye, the enforcement — 146 — of another vendor’s lien on 135 acres, sold to Ohalfant and the ascertainment of the amount of a vendor’s lien due to Maxwell from the plaintiff, who had bought both of these tracts of Maxwell. By two commissioner’s reports it was stated, that a vendor’s lien on both these tracts, which was. the first lien on them, amounted on May 18, 1881, to $1,232.63, though defendant Musgrave in his answer insists, that nothing was due to Maxwell; and the reports, while not denying, that something might be due, seem to imply, that it would probably prove to be but little. These commissioners’ reports stated, that there was due from Mus-grave on the 142 acres as of the 18th of May, 1881, $1,211.37, of which $624.08 was due to Arnold & Brannon and $517.27 to Shirey, which sums were a lien on the 142 acres subject to the prior lien of $1,232.63 ; and finally the reports stated, that there was due from Ohalfant, for which there was a vendor’s lien on the 135 acres subject also to Maxwell’s prior lien as of the same date, $2,335.60, This last is reported by the commissioners as belonging now to P. F. Lightburn as the assignee and sub-assignee of Shirey. He it is presumed, had these liens assigned to him after the institution of the suit, as he is not mentioned in the bill or made a party to the cause. The decree appealed from ascertains, that the balance of the purchase-money due from Musgrave for the 142 acres is $9.21 instead of $1,211.37 as the commissioners reported, and that it was due to Arnold & Brannon; and a personal decree against Musgrave for that sum with interest from July 2,1883, is rendered in their favor, the plaintiff and Musgrave being each required to pay his own costs. This is the whole of the decree, the court having declined to act upon said commissioners’ reports, till B. F. Lightburn was made a party, or “to make any further decree touching the rights of the parties and all questions but this one adjudicated” are reserved for future determination, and the court especially reserves all questions touching the rights of Arnold & Brannon as to any right they may have to enforce the balance of this judgment against Musgrave and to recover against their assignor, the plaintiff.” It is only necessary to understand the objects of this suit and the matters, which it called upon the court to deter — 147 — mine, to see, that among the questions reserved by the court in this final decree for its future determination are some of the most important principles in the cause ; and of course this decree of July 2,1883, is not appealable; and this appeal must be dismissed as improvidently awarded; and the appellants must pay to the appellees their costs in this Court expended. Appeal Dismissed.