Moore v. Johnson , 1884 W. Va. LEXIS 80 ( 1884 )

Green, Judge:

"When a petition for an appeal is presented to this Court, it is examined by one of the members of the Court, and, if he thinks the appeal should be granted, an order is made by this Court granting such appeal, the other members of the' Court not examining the record. But if the judge, who examines the record, thinks that the appeal should not be granted, he hands the record to each of the other judges of this Court in succession; and if any one of them is of' opinion, that the appeal should be granted, an order of the Court is made granting the appeal. If all the judges are of opinion, that the appeal asked ought not to be granted, an order is entered refusing to grant the appeal; and if each of the members of this Court thinks, that the decree complained of is plainly right, this Court may state in the order refusing to grant the appeal, that this refusal is because the order complained of is plainly right. This was done in this case on the petition for an appeal from the decree of April 12, 1880. Whenever this is done, by section 11 of chapter 7 of Acts of 1872-3 and bv section 11 of chapter 157 of Acts of 1882,'this Court is prohibited from ever entertaining a petition for an appeal therein afterwards. The petition for an appeal in this cause was presented, after this order was made refusing an appeal to the decree of April 12, 1880, because it was plainly right. It is true this appeal is nominally asked to the decree of October 18, 1880; but no errors are assigned in this decree, and none exist, if the decree of April 12, 1880, is right, as this decree is based solely upon the former decree and simply to carry it out. All the errors that are now assigned are errors claimed to be in the decree of April 12, 1880. We ought therefore under the statutes to have refused to entertain this last petition.

The appeal in this cause was improvidently awarded and must be dismissed; and the appellees must recover of the appellants their costs in this Court expended.

Dismissed.