Opinion
04-05-1823
Fretwell v. Wayt and Winn
Decree and appeal dismissed.
SYLLABUS
The only question in this case was whether the decree of the chancellor was interlocutory or final.
Fretwell filed a bill of injunction in the county court of Albemarle, against Wayt and Winn and others. The injunction was granted, and afterwards dissolved. From this order of dissolution, an appeal was granted to the Staunton chancery court, where the order was affirmed. Fretwell appealed to this court.
The counsel for the appellees, moved to dismiss the appeal, (the appellant having been called, and not appearing,) on the ground that the decree of the chancellor was interlocutory only; and that under the law, the appellee may call up an interlocutory decree, at any time within sixty days.
OPINION
Brooke, Judge
The only question in this case is, whether the decree of the chancery court, affirming the decree of the county court, is interlocutory or final. If final, the appeal must take its turn on the docket, and cannot now be dismissed upon calling the appellant. If interlocutory only, the appellee has a right to call it up within the sixty days prescribed by the act of assembly, and it may be dismissed unless prosecuted by the appellant.
The court, upon consideration of the provisions of the act, is inclined to give it a construction, which will best accord with the obvious intention of the legislature. An appeal from an interlocutory decree in such case, was allowed by the act, to avoid expense and delay, and in order to settle the principles of the cause. The direction in the act, that the record is to be sent to this court, within two calendar months, and the appeal to be heard and determined, within sixty days, was intended to effect the same object.
If in this case then, the decree is to be considered a final decree, because it has been affirmed in the court of chancery, the provisions of the act in relation to interlocutory decrees, would be defeated.
The court, therefore, is of opinion, that the decree of the chancery court, affirming the decree of the county court, has not changed its character, and that both decrees are still to be considered as interlocutory; and that the appellant having been called and failing to answer, the appeal is to be dismissed.