Pretlow v. Bailey's Ex'x , 29 Va. 212 ( 1877 )

Moncure, P.,

delivered the opinion of the court.

This is a case involving the right of a creditor to recover what is called war inter- . est, notwithstanding the act approved April 2, 1873, which is the same with the provision on that subject contained in the 14th section of chapter 173 of the Code, page 1120. The same question was involved in several cases recently decided by this court, but not yet reported — at least in the regular report of the decisions of the court- — having all been decided too late for publication in the last volume of Grattan’s Reports. In those cases the question was solved in favor of such right, and it was held that in its application to such a case the act is unconstitutional and void. Therefore it is unnecessary to repeat here the reasons for such a conclusion, which are fully set out in those cases, and it is sufficient in this case merely to refer to them. They are Roberts’ adm’r v. Cocke, &c.; Murphy v. Gaskins’ adm’r; Cecil v. Deyerle, &c.; Linkous, &c. v. Shafer, &c.; Garnand v. Childress, &c.; and Kent’s adm’r v. Kent’s adm’r: the first two and last of which cases are reported in the Virginia Law Journal—28 Gratt. 207, 840; the former in the last March number, page 168, and the latter in the last September number, page 556, of that publication—28 Gratt. 775. The jurisdiction of this court *in those cases and this, is independent of any question as to the value or amount of the matter in controversy, and rests upon one of the exceptions enumerated in the constitution of the state (article VI, section 2), to-wit: the one which relates to controversies concerning or involving the constitutionality of a law.

The court is therefore of opinion that the circuit court erred in overruling, instead of sustaining, the exception taken by the defendant Pretlow to the report of Commissioner Gordon, dated 28th September and filed 2d October, 1872; and that so much of the decree appealed from as is in conflict with the foregoing opinion, outfit to be reversed and annulled with costs, and a decree rendered in conformity therewith.

The decree was as follows:

This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that it has jurisdiction of this appeal, and that the circuit court' erred in overruling, instead of sustaining, the exception taken by the appellant Pret-low to the report of Commissioner Gordon, dated 28th September and filed 2d October, 1872. Therefore it is decreed and ordered, that so much of the decree appealed from as is in conflict with the foregoing opinion and erroneous as aforesaid, be reversed and annulled, and that the appellee, Ann Eliza Bailey, out of her o.wn estate, and the ap-pellee, Ann Eliza Bailey, executrix ot Thomas R. Bailey, deceased, out of the estate of her said testator in her hands to be administered, do pay to the appellant his costs-by him expended in the prosecution of his appeal aforesaid here. And *this cour.t, proceeding to render such decree as the said circuit court ought to have rendered, in lieu of so much of the said decree as is erroneous and reversed and annulled as aforesaid, it is further decreed and ordered that the said exception taken by the said defendant Pretlow to the said report of Commissioner Gordon, be and the same is hereby sustained. And it is ordered that this cause be remanded to the said circuit court of Albemarle county for further proceedings to be had therein to a final decree; which is ordered to be forthwith certified to the said circuit court of Albemarle county.

Decree reversed.