#### *Sites and Others v. Wieland.

February, 1834,

Richmond.

(Absent Brooke and Green. J.)

Appeals — Dismissal for Want of Sufficient Security — ■ Right of Appellants — Statute.*—An appeal taken to this court prior to the statute of February 1825, Supp. to Rev. Code, ch. 98, was dismissed after the statute passed, for want of sufficient security : Hei,d, appellants are not entitled either to have the appeal reinstated, or to have a new appeal allowed, on the terms provided by that statute, namely, on giving security for costs only, and taking the appeal without a supersedeas to the decree.

An appeal was taken by Sites from a decree of the superior court of chancery of Staunton, and an appeal bond given, as then required by law in ■ all cases, and the cause brought up to this court, and docketed, before the statute of February 1825, authorizing appellate courts to allow writs of error and appeals, upon bond and security for the costs of the writ of error or appeal only, provided such writ of error or appeal shall not operate as á supersedeas to the judgment or decree. Supp. to Rev. Code, ch. 98, p. 127. In June 1827, after a rule duly entered and served on the appellants, the court made an order, that unless other and sufficient security should be given on or before the 1st July ensuing, the appeal should stand dismissed, as an act of the day on which the order was made. No new appeal bond was given. The court adjourned for that term; and at August term 1827, the appellants presented a petition to the court, praying that the appeal should be reinstated, or that a new appeal should then be allowed, upon the appellants giving bond and security for costs only, so that the appeal should not operate as a supersedeas to the decree. Upon this application, the court took time to advise; and the case was never after-wards mentioned, by bar or bench, till this term.

But now, Johnson recalled the attention of the court to the appellants’ petition of August 1827, and asked the judgment *of the court upon it; insisting, that the question should be decided now, as it ought to have been in August 1827, and an appeal allowed, as then prayed, under the statute of February 1825.

Leigh, for the appellees, insisted, that neither the original appeal could have been properly reinstated in August 1827, nor any new appeal allowed upon the terms of the statute of 1825.

*

See monographic *note*Ion “Appeal and Error” appended to Hill v. Salem and Pepper’s Ferry Turnpike Co., 1 Rob. 263.

The principal case is cited in Casanova v. Kreusch, 21 W. Va. 729.

TUCKER, P.

It is admitted, that the court ought to decide the question now, as it ought to have been decided at August term 1827. But the court could not have reinstated the original appeal, at August term 1827, not only because the term at which it was dismissed had passed, but because it ought not to have been reinstated on the terms on which it was prayed in the petition. The original appeal was taken before the statute of February 1825; and the court could not have reinstated that appeal, upon terms not allowed by law at the time it was taken. It could not put appeals taken before the statute, upon the footing of appeals authorized by the statute of February 1825. When the appeal was allowed, the appellants had no right to have the decree reviewed here, without giving security to the appellee, to perform the decree if it should be affirmed: but if the appeal were now reinstated upon the terms proposed, the appellants would bé let in to arraign the justice of the decree, without giving such security.

The case, then, can only be considered as a new application at August term 1827, for an appeal upon the terms of the statute of 1825; that is, upon the party giving security for costs only. But this cannot be allowed, because there had been a previous appeal, and that appeal dismissed at June term *411827; and it is provided, in broad terms, that after a dismission of an appeal, writ of error or supersedeas, in the court of appeals, no appeal, writ of error or supersedeas, shall be allowed; 1 Rev. Code, ch. 64, *$*20, p. 194. It would, indeed, be very mischievous, if' after the dismission of an appeal, upon a rule for security and failure *to comply with the rule, the appellant should be permitted to come at any future day with his security, and ask a reinstatement of his appeal, or a new appeal, upon the ground that he is now able and ready to give security. Such a proceeding would utterly frustrate the order of dismission; for the order appoints a day certain for giving the security, which would be futile, if the security may be given at any time the party pleases. If the appellant could not have been received to reinstate the dismissed appeal, after the order for the dismission of it was absolute, and the term at which the dismission was made had passed, upon his giving new and full security after the day allowed him for the purpose, it is not perceived how his case can be stronger, when he comes to ask a new appeal upon giving security for costs only, in the face of the statute which inhibits the allowance of any new appeal after a former appeal has been dismissed.

The appellants, therefore, can in no way take any thing by their petition; and so much of the order of August term 1827 as may be construed to suspend the right of the appellee to proceed for his costs, is to be rescinded.

Appeal denied.