The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1883-10-25
In the Supreme Court of Appeals at
Stanton.
JAS. A. Frazier VS.. VIM. Frazier ct a
OPINION OF COURT BY JUDGE LACY.

JAS. A. Frazier VS.. VIM. Frazier ct ais
OPINION OF COURT BY JUDGE LACY. Z
This is an appeal from adecree rendered
in the Circuit Court of Augusta county
on the 30th day of November, 1880, in the
consolidated causes therein of James A
Frazier's guardian VS.. James "A. Frazier
the suits of Porter and wife VS.. John w
Frazier'S Administrator, VIM. Frazier
John L. Randolph and others, and the suit
| of Porter and wife and James A. Frazier
VS.. VIM. Frazier and John L. Randolph
and others.
The first suit was brought in February
1854, i'll the Circuit Court of Bath county
by VIM. Frazier and Tate guardians OF
James A. Frazier, infant child of John
w. Frazier, then about six years of age
and Elizabeth, the widow of the said JOIN
| w. Frazier, dec d. e&s
The object of this suit was to make sale
| Of certain lands belonging to the estate Oh
the said John w. Frazier, deceased, sit
uated IN the county of Bath, and was ii
the nature of q friendly suit, and was pro
ceeded in in the said county of Bath unit
the year 1854. when it was removed to and
dOcketed in the Circuit Court of Augusta
in that year. This bill was filed to sell GER
tain lands of the said Jno. w. Frazier
dec d., but 10y a vacation order entered or
the 4th day of January, 1855, William
Frazier was directed to settle hiS..accOunt
as administrator of John w. Frazier. decd
Upon the coming in of the Commissioners
report on the 18th of April. 1855, reporting
a statement of this account, exceptions
were filed to the said report of the Com
missioner by the widow of John w. Fra.
zier. and that litigation begun which. con.
In I,
day of November, 1880, and which is now
before this Court upon an appeal.
The first question presented for the con-
sideration OF this Court is the question
raised by the appellees. the assignees of
VIM. Frazier, upon the two years limita-
ton for appeals.
The appellees say that the final decree in
this cause was rendered on the Both day of
| November, 1880, and that the appeal al
lowed i'll this cause by one of the judges of
this Court was allowed on the Sth day of
January, 1888, two years and thirty eight
days after the final decree was entered. and
the cause was removed from the docket.
The appellant insists, on the other
hand, that he presented the record
for an appeal, duly copied and certified,
to one OF the judges of this Court on the
9Th day of November, 1881, who endorsed
that fact on the record on the same day.
and that by the law of this State. the time
between such endorsement and the time
when the record is delivered to the clerk
OF the Court of Appeals, with the appeal
recorded, shall not be computed in the two
years of limitation for appeals that such
time so elapsing between the presentation
OF the record to q judge of the Court of
Appeals, and the delivery of the same to
the clerk is saved to the appellant in ev-
cry case by Statute. This statute, which
was passed at the session of the General
Assembly 1S76-'77, is as follows:
''Sl7. No process shall issue, upon any
appeal, writ OF error, or superSedeas al
lowed to OF from a final judgment, decree
or order, if when the record is delivered to
the clerk of the appellate court, there
shall have elapsed two years since the date
OF such final Judgment. decree or order !;
but the appeal, writ of error or super
sedeas, shall be dismissed whenever it APP
pears that two years have elapsed since
the said date before the record is deliv-
| cred to such clerk OF before such bond is
given as is required to be given before the
appeal, writ OF error or SuperSedeaS, takes
effect, provided, however, that section
| twenty-six of chapter one hundred and
eighty-tWO of the Code of eighteen hum
dred and sixty, instead of this section
shall remain in full force and apply to
cases in which the appeal, writ of error or
supersedeas. may be to any judgment or
decree rendered before the passage of this
act; and provided further that the time
Which shall elapse from presenting the Pc
tltlOn for an appeal. writ of error or super
sedeas, achich shall be endorsed thereon bg
the Judge tO.whom the same shall be first
delivered, and the delivery of the record
to the clerk of the appellate court, as
aforesaid shall be excluded from the COM
putatiOn of the said period of two years. y
The transcript of the record shows that
on the 9Th day Of November one of the
| judges of this court made thereon the fol-
lowing endorsement:
This record scds received by me the 18th
November, 1881, Waller r. Staples.
| And again on the oath of April, 1882,
the following other endorsement J,
Il have taken no action on this record
because no petition accompanied the
record. April oath, 1882. w. R. S."
There is no other or further endorse
ment thereon until January 9Th, 1888,
when the appeal was recorded.
| The appellant says that the Statute OF
limitations ceased to run on the 9Th of
November, 1881, when Judge Staples made
his first endorsement, and under. the Stat
ute could not commence again to run until
the record was presented to the clerk and
commenced again 10 run OH tIldU Qcty. dIlu
stopped on the day the bond was given,
which in this case was January 9th, 1888,
the next day after the appeal was allowed.
The appeilees insist that the Statute was
not stopped or stayed by the endorsement
of the Judge because no petition accom-
panied the record when Judge Staples re-,
ceived it, and two years had run before the
appeal was allowed on the Sth Of January,
1883.
And this is the question thus submitted
and first to be passed on by this Court be-
fore the appeal can be considered on its
merits.
1t is useful here to inquire what is the
object, purpose, and scope of the provision
of the law seen above, which provides
THAT the time which shall elapse from
presenting the petition for an appeal,
writ of error or supersedeas, Which
'.shalI be endorsed thereon by the Judge
''to whom the same shall be first delivered,
land the delivery Of the record to the clerk
''of the appellate court, as aforesaid, shall
''be excluded from the computation of two
years. Does the law mean the petition