Smiley v. Provident Life & Trust Co.

Cardwell, J., delivered the opinion of the Court. This is a writ of error to a judgment of the Circuit Court [788] 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 and Trust Company of Philadelphia), the Virginia Iron Investment Company, J. Harry Lee, and Stephen Lee to recover 26 48ths 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 Lee and plaintiffs in error here claimed under one and the same source of title. Joslyn, by deed 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. Hpon 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 81st 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 26 48ths 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 [789] that the judgment theretofore rendered therein he 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 Virginia (1887, 1904), section 3454. Lockridge v. Lockridge, 1 Va. Dec. 61; Rogers’ Admr. v. Bertha Zinc Co., 1 Va. Dec. 827; Tucker v. Sandidge, 11 Va. L. 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 determined as between plaintiffs in error and the defendant in error upon the issues yet to be made up on the plea of the general issue or other defense made by the defendant in error pursuant to the Tuling of the Circuit Court awarding it a new trial. As to what may be the ultimate determination of the rights of the parties we can, in the present situation of the case, know nothing judicially. Non constat but that at a trial of the issue or issues between the parties plaintiffs in error will prevail, in which event they would not be prejudiced by the ruling here complained of. On the other hand, if defendant in error should prevail, a writ of error to the final judgment of the Circuit Court in its favor would bring under the review of this court not only that final judgment, but first the ruling of the Circuit Court awarding defendant in error a new trial which it is designed to have reversed upon this writ of error, and which is a judgment in no sense final in its character. [790] The application of plaintiffs in error to this court, therefore, was premature, and the writ of error must he dismissed as improvidently awarded.