The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1883-10-25
sTAUNTON, VIRGINIA. OCTOBER 25. 1883.

Ulo record. +"
What did he mean by this endorsement
There was no authority in the statute
for this endorsement If he meant to re-
to some other Judge? The record does not
disclose. Can we suppose that Judge Sta
pies kept that record in his hands five
months and nineteen days without know
ing that the petition was not there-theli
why did he hold it He could have had but
4 one motive in endorsing the record tic
! hand. and then holding it for five months
4 and nineteen days, and in the absence Of
all evidence in the record as to what he did
with it, we are left to infer that he con-
tinued to hold it until his term expired,
December 3lst, 1882, when it passed out
4 of his hands to his successors in office.
/ And if he did not keep it himself, SO far
as the record discloses, it may have been
in the hands of one OF the other Judges
then in office :; but, beyond all question,
the record shows that he had it in his
| hands OH the 24th of April, 1882, whatever
he did with it after that. Now. We think
that it is clear that the time when he held
it must be excluded from the computation
/ of the two years. Heevidently considered
4 that he was holding it under the Statute,
and had stopped the Statute from running,
and he no doubt SO informed the appellant.
1
4 judges OF this Court, and his acts are enti-
tied to exactly the same respect and defer
4 enee as WetwDuld accord to the acts of any
i judge Of the present Court, -and SO far as
i his acts 60 in this regard he was perform
ing a function of the Court Of Appeals
which one judge is authorized to do as and
for the whole Court. One judge may
award an appeal and it is the act Of the
Court one judge is authorized to endorse
the record to hand and it is binding on the
whole Court, is the act Of the whole Court,
and we say. therefore. that this endorse
ment OF the judge, of this Court is con-
elusive under the Statute. And we may
observe that while the experienced judge
of this Court so construed the effect of
his act, the equally experienced clerk of
this Court, who received all the appeals in
this Court and had done so for years. and
who was forbidden by the Statute to issue
any process, if the two years had expired,
endorsed on the writ issued in this cause
4 that the time was saved from the endorse
ment of Judge Staples, and we are of
| opinion that the Statute ceased to run
| upon the endorsement by the judge of the
| if we held different view there is no evil
dence when the petition was actually put
| in the record.
| We are, therefore, of opinion to deny
| the motion to dismiss for want of juriS-
diction.
The next question presented to this
Court, in this cause, is motion to dis
miss the appeal as improyidently allowed
for the following reasons:
"A careful examination Of the record,
| when made complete, will show that the
s'the principles in the cause as between
"James A. Frazier and VIM. Frazier,
land finally disposed of all matters of con-
| 'strOverSy between those parties. All that
twas left to be done was mere matter OF
compensation
On the 18th of June, 1871, another inter-
| locutory decree was rendered in thesel
causes in favor Of James Campbell's admit
| from which the appellant here took an ap
peal to this court lsee transcript of record
of James A. Frazier and James Campbells
| adm r.. among the records of this COURT.
| That appeal was finally passed upon by
this court at the September term 1871.
1t Is claimed thatit was an interlOcutory
decree, but it brought UP the whole record
under date OF that decree. and that while |
notnlngwaS involved inthat appeal between
James A. Frazier and his guardian, and
James A. Frazier against VIM Frazier as
surviving partner Of his fathel and James
A. Frazier VS.. VIM. Frazier is admir- of
| his father, but was a controversy between
James A. Frazier and Campells adm r |
concerning the title toa piece olland bought
| by John w Frazier of Campbell, and from
which he was evicted, and iinlwhich Jas.
A. Frazier and VIM. Frazier hid common
interest, that it cured all errrs between |
| the two Fraziers because this Ourt passed |
on the errors between the two FrazierS
and another person about distinct sub
| ject. This court said in the CAFE Of Camp
bell VS.. Campbell, cited to sust;in the mo- |
| ton. that an appeal from a delree brings
| up the whole proceedings in thIcase prior |
| to the decree and either party can have
any error against him in those proceedings
corrected without the necessity of a cross
appeal in any case. This is very true and |
is often acted on, and is never disputed;
indeed . rule of this Court provides that, \
In any appeal, writ of error, or stpersedeas,
| if error is perceived against anyHppellee or |
defendant, the Court will consider The |
whole record as before them AMI will re-
view the proceedings, either in whole or in |
! part, in the same manner they would do, I
were the appellee or defendant To bring the |
same before them, either by appeal writ |
of error, or supersedeas, unless such error |
be waived by the appellee OF DEFENDANT
which waiver shall be considered as a re-
lease of errors as to him. AID this is |
what Judge M0ncure speaking for the |
Court meant in the language ciled above, |
and this is all he meant, as is SheWn by the |
preceding paragraph.
"TheId decision of this Court is not only |
| final in regard to the decree appealed from,
but also in regard to all the prior orders
and DEGREES in the case bet,cesn the APP
PELLANTS AND THE APPELLEEs.
The decree OF the Court Of Appeals upon |
question decided by the Court below is |
final and inevitable and upon second APP
peal in the cause, the question decided up
on the first cannot be reversed. In that |
case the Court says, 1.-The main though |
not the only question arising in this cause |
is whether the decree pronounced by this |
Court, 18th of August 1866, declaring &C.,
is or is not a final and conclusive decision
of the question as to such validity in this |
case--or in other words whether this Court |
can now reverse and alter that decision |
to wit in 1872 to state the questionis to
answer it,
Again in White VS.. Atkinson 2 Call 376
decided in 1900. 1t was held that Court
Of Chancery cannot make any alteration l n
the terms of decree of this Court certl-
fed thereto in order that afinal decree may
be made in the cause.
In Price VS.. campbell 5 Call, 1l5, de-
cided in 1904, the same doctrines were
held. Tucker, Judge, said. 'sThe single
question is whether the Chancellor could
upon the varied facts change a decree OF
this Court. White vs.. Atkinson decides
that he could not, and | approve. OF that
decision.
In the Bank Of Virginia vs.. Craig D
Leigh 500 it was held that this Court can
not examine the propriety of decree made
at a former term inter parties.
In the case cited above of Campbell VS..
Campbell, Judge Moncpre said, Accord
ing to the authorities before referred to,
we think it very clear that we have now
no right to review and reverse the decree
pronounced by our predecessors in this
cause ON the 2Sthof August 1858.
These principles are all well settled, and
arenot now disputed. This controversy
is not the same controversy. it is not
the same question, it is not between
the same parties, it is not the same de- |
cision inter parties. 1t is not a question
between the same appellants and appellees,
as the case of Frazier vs.. Campbell. That
case has been decided by this Court.
and it is not now sought to be disturbed;
however erroneous that case may be. under i
the authorities cited above. it is entrenched |
beyond assault, its position is impregnable.
1t was never reported, and we do not
know the details of the decision except
that it has been stated at bar that its de-
ciSiOn was adverse to the appellant there-l