Hutchinson v. Landcraft , 4 W. Va. 312 ( 1870 )

Brown, President.

There was a motion to dismiss the appeal on several grounds. The first of which is, that the statute, (Code of West Va., chap. 136,) does not, as alleged, allow a personal representative to appeal as of right, but only on petition to this court or a judge thereof. But there is nothing in this objection, because the first section of the act allows appeals generally ©n the terms prescribed; and section ten only requires the personal representative to apply by petition to this court, or a judge thereof, who would be relieved from giving the undertaking required in the second section. This is cumulative and not a limitation on the right of appeal given in the first section. The administrator in this case,' did not choose to avail himself of the privilege of applying for an appeal without giving bond, but gave the bond and perfected his appeal, as he might do under the first, second and third sections.

Another ground alleged for the motion to dismiss is, that the notice to the appellee, of the appeal, is of an appeal from an order of the judge granting an injunction, dated October 13th, 1869; when it is claimed that the order was dated October 14th, 1869. But this objection is removed by an inspection of the manuscript record, by which it appears that the true date was October 13th, 1869, and the apparent variance was a misprint in the printed record; and thereupon it was claimed for the appellee that the case should be continued for want of a correctly printed record; but the continuance is refused because it would be an unnecessary delay and expense to no useful purpose, as the court will inspect the record in such case.

Another ground alleged for dismissing the appeal is, that the appeal was taken from the order of October 27th, 1869, refusing to dissolve the injunction if a new bond with security be not given in twenty days from date of the order, and before the time expired for giving the bond required, the appeal was taken.

The bond was given within the time, and the refusal to dissolve, thereby became effectual. It was not necessary for the party so enjoined to wait till the bond was given, but might give his notice of appeal at once, as was done in this case. It is said there is no authority for the judge, in vacation, to dissolve an injunction; the statute, Code 1860, chapter 179, section 12, allowing the same, having been omitted from the Code of "West Virginia, and repealed. But the order in this case did not dissolve the injunction irf fact, but so far as it required the complainant to give additional security, it was within the powers of the chancellor.

Another ground alleged for dismissing the appeal is, that no appeal lies from the order of the judge in vacation granting the injunction. But the case is clearly within the reason and equity of the statute: Code of W. Va., chap. 136; and from the filing of the same with the clerk of the circuit court of Monroe county, and the issuing of process thereon in chancery, from said clerk’s office, it was a case pending in said circuit court, and within the letter, as well as the spirit, of the statute.

I think, therefore, that the motion to dismiss the appeal should be overruled.

On the merits of the case, several errors are assigned by the appellants.

And, first: That the court erred in granting an injunction to the ivhole debt, when the bill showed that only a small and specified pari of it was'not due, as claimed by the complainant. This error is well assigned, because a party ought not to have his whole debt delayed, when the debtor only sets up matter of defence to a specified part. At most the injunction should have been allowed to the part so specified, and to that part only.

As to the validity of the act of 1868, prohibiting persons engaged in the rebellion from recovering interest accruing during the war, and while they were enemies, it is sufficient to say, that it invades no vested right of the enemy in that particular, for he had no right while such enemy, to have or demand interest accruing to him during the war, from a citizen not such enemy. Interest can only arise on contract or on law, and none such can be implied by law while the relation of friend on the one side, and enemy on the other, existed between the parties. See opinion of Pendleton, in McCall vs. Turner, 1 Call, 122; Mutual Insurance Company vs. Supervisors of Berkeley, infra. So far, therefore, as the act prohibits the collection of interest for the period of the war, and the plaintiff’s relation as enemy, I think it is valid. I think, therefore, that the order granting the injunction, after it was filed in the clerk’s office of the court, and process issued thereon, and thus became a cause in court, ought to be reversed, so far as it granted the injunction restraining the defendants beyond the 300 dollars claimed by the plaintiff not to be due, nor owing from him on the said debt, and the injunction should be dissolved accordingly,-and retained only as to the said 800 dollars, or so much as the interest on the debt will amount to from April 17th, 1861, to April 9th, 1865, that being the time stated in the bill during which appellant was engaged in the rebellion, so controverted in the bill. And the appellant should have his costs in this court, and the cause should be remanded to the court below for further proceedings.

The other judges concurred.

Decree reversed.