Bolling v. Lersner

Citations

• 26 Va. 36
• 26 Gratt. 36

Syllabus

<p>1. The g 3 of the act March 15, 1867, which amended ^ 3 of ch. 182 of the Code of i860, changing the limitation of time for presenting a petition for an appeal from, or writ of error or sttfterscdcas to, any final decree or judgment, from five to two years after it was made or rendered, did not amend 26 of that chapter, which allows five years for perfecting the appeal, by giving bond &c. And therefore, where a petition for an appeal was presented within two years from the date of the decree it might be perfected in any time within five years from that date. But see now, Code of 1873, ch. 178, \\ 17.</p> <p>2. If an appeal has been allowed, and the cause decided by the appellate court, without objection by the appellee that the appeal was not perfected in time, the objection cannot afterwards be made in the court below, or in the appellate court when the cause is brought up a second time.</p> <p>3. An appeal allowed by a judge acting under military authority in 1869, was a valid appeal, and was confirmed by the act of March 5, 1870, styled the enabling act.</p> <p>4. The act of February 28, 1872, to provide a special Court of Appeals, acts of 1871-72, ch. 124, p. 98, which creates a special Court of Appeals to consist of three judges of the Circuit courts, is constitutional, and the decisions of the court are valid and binding on the parties in the causes decided.</p> <p>5. All cases pending on the docket of the Supreme Court of Appeals, not involving a constitutional question and not decided in the court below by one of the judges of the special Court of Appeals, are proper cases to be sent to said special Court of Appeals for decision; and it is for the judges of the Supreme Court of Appeals under the constitution and the statute, to select the cases to be sent to said special court.</p> <p>6. The special Court of Appeals having decided a case regularly sent to that court, and having reversed the decree of the court below, and sent the cause back for further pr