Opinion
05-10-1826
Cottom v. Cottom
Daniel, for the appellant. Spooner and May, for Charlotte Cottom, the appellee.
Appeal from the Superior Court of Law for the town of Petersburg. The case was this:
In September, 1823, Samuel Cottom, moved the Hustings Court of Petersburg, for administration of the estate of Richard Cottom, deceased, by whose will the said Samuel had been appointed executor. The Court being equally divided, the motion was over-ruled, and an appeal taken to the Superior Court, where the judgment of the Court of Hustings was affirmed.
In August, 1824, Samuel Cottom made a second application to the Hustings Court to be permitted to qualify as executor as aforesaid; which motion was again over-ruled, and the administration with the will annexed, was granted to Charlotte Cottom, the widow of the said Richard.
Samuel Cottom filed a bill of exceptions to the opinion of the Court, setting forth the evidence by which his motion had been supported; but, as this Court decided the case on the ground of jurisdiction, it will be unnecessary to insert that evidence here.
Samuel Cottom appealed to the Superior Court, where the judgment of the Court of Hustings was affirmed. From this second judgment, he appealed to this Court; but no appeal was taken from the first judgment.
Judgment affirmed.
Daniel, for the appellant.
Spooner and May, for Charlotte Cottom, the appellee.
The argument turned, principally, upon the merits of the judgment of the Hustings Court, in rejecting the application of Samuel Cottom; and it was urged, in addition, by the appellee's counsel, that the first judgment was not appealed from, and must be a bar to any future application on the same subject, until it was reversed. For this doctrine, they referred to the case of Webb v. M'Neil, 3 Munf. 184.
The PRESIDENT delivered the opinion of the Court.
OPINION
The proceedings on the first application of the appellant to qualify as the executor of Richard Cottom, his testator, ought to have put at rest the controversy now before the Court. The record of those proceedings was properly before the Circuit Court, upon the appeal from the second order of the Hustings Court, refusing to permit the appellant to qualify as executor as aforesaid. The Circuit Court had both appellate and original jurisdiction of the controversy; and the record of the proceedings on the first application to qualify, was properly presented to it as a bar to the application in the second instance. Until the judgment of a Court of competent jurisdiction, upon the same matter, is reversed in a course of regular proceedings on it, a resort to any other tribunal, or to the same tribunal, for its judgment on the same controversy, is inadmissible. Though the Hustings Court, on the first application by the appellant to qualify as executor, was divided, and only virtually refused his application, yet, an appeal lay to the Circuit Court from that refusal, and was prosecuted by the appellant here to a judgment against him; from which, he failed to appeal to this Court. The record of those proceedings is, therefore, not before this Court, for the purpose of re-viewing the judgment against him in that case; although it was properly before the Circuit Court, in the proceedings now appealed from, as a bar to any further application to qualify as executor, no pleadings being required in such case; and of consequence, is also now before this Court for the same purpose.
Without noticing, therefore, the other points made in the argument, the judgment is to be affirmed.