McDaniel v. Ballard , 4 W. Va. 196 ( 1870 )

Maxwell, J.

McDaniel and others presented an application to the judge of the circuit court of Monroe county for an injunction to enjoin and restrain Lewis Ballard, the sheriff of said county, from collecting certain taxes assessed, upon the real estate of that county. The judge, upon hearing the application in vacation, refused to award the injunction prayed for; whereupon an application was made in conformity to law to one of the judges of this court, who also refused to award the injunction. A petition was then presented to one of the judges of this court for an appeal from the order of Judge Harrison, the circuit judge, disallowing the injunction prayed for, which appeal was allowed. The case is now submitted to this court without any assignment of error, and without argument, for decision. The first question which occurs to my mind upon looking into the record, is one as to the jurisdiction of this court to entertain an appeal from an order made in vacation, refusing to award an injunction. The appeal in this ease was allowed on the 17th day'of December, 1866.

As the law was at that time, the application for the injunction might have been made to any judge of any circuit in the State, or successively to all the circuit judges of the State, and upon the refusal of any one or all the circuit judges to award it, the application might have been made to any one or more of the judges of this court in vacation, collectively or individually. Code of Va., 1860, ch. 179, §§ 6 & 7, p. 737.

So that, as the law then was, it was within the power of the applicants for this injunction to hare obtained the opinion of every judge within the State on the merits of their application, and, if any judge could have been found concurring with them, to have obtained from him an injunction.

They did not, however, pursue the course open to them, but on their application being refused by one circuit judge and one judge of this court, appealed to this court. Has this court jurisdiction of the case? The second section of chapter 182, p. 745 of the Code of Virginia of 1860, provides that, “ a person who is a party * * * to any case in chancery wherein there is a decree or order dissolving an injunction or requiring money to be paid, or the possession or title of property to be changed or adjudicating the principles of the cause,” may appeal.

The case does not come within the description of any of the cases described in this section, on which an appeal may be taken. It is proper to notice that, since the appeal was obtained in this case, the foregoing section has been changed by an amendment changing the section so as to read:

“Granting or dissolving an injunction,” and, as amended, will probably be found in the Code of this State when published.

The law in force at the time the order was made refusing the injunction, and when the appeal was taken, will govern this case, and the amendment is only referred to for the purpose of showing that, while the legislature was enlarging the grounds for appeal to include orders or decr’ees granting injunctions, it did not include orders or decrees refusing to grant injunctions.

This case comes here on an appeal without a supersedeas, and is nothing more, in fact, than a naked application to this court for an injunction, which it has no jurisdiction to award, though it may reinstate an injunction improperly dissolved.

If there had been a supersedeas also, it would not change the case. A supersedeas would have nothing to operate upon, except to prevent proceedings under the order refusing the injunction, under which no proceedings were designed or could be taken. The appeal does not and cannot operate as an injunction, and would not, therefore, if allow-en, afford any adequate remedy in a case where an injunction is necessary, because before an appeal could be heard the mischief would be done which the injunction was intended to prevent. But the remedy afforded by the law is complete without an appeal, as before stated, by application to any one or to all the judges of the State. The remedy is, in fact, more extensive and complete than in any other class of cases, because, in no other case does the law provide for the hearing of a case before any but the judge of the circuit who may try it, and in case of appeal before the judges of the court of appeals.

But whatever may be the reason for it, I think it plain that the legislature has not given this court jurisdiction of this case, or of'cases similar to it, and that the appeal ought to be dismissed for want of jurisdiction, with costs to the defendent in error.