Farr, Paul D.

English

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Volume 40 Issue 3 Article 13 April 1934 Appeal and Error--Decree "Adjudicating the Principles of the Cause"--Decree Dismissing a Suit in Equity With Leave to Transfer to Law Paul D. Farr West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Civil Procedure Commons Recommended Citation Paul D. Farr, Appeal and Error--Decree "Adjudicating the Principles of the Cause"--Decree Dismissing a Suit in Equity With Leave to Transfer to Law, 40 W. Va. L. Rev. (1934). Available at: https://researchrepository.wvu.edu/wvlr/vol40/iss3/13 This Recent Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. RECENT CASE COMMENTSAPPEAL AND ERROR - DECREE "ADJUDICATING THE PRINCIPLESOF THE CAUSE" - DECREE DISMISSING A SUIT IN EQUITY WITHLEAVE TO TRANSFER TO LAW. - Plaintiff instituted a suit in equityto subject certain property to a contractual indebtedness. Ondemurrer, the chancellor was of opinion that the plaintiff hadshown no ground for equity jurisdiction, and dismissed the billwithout prejudice to the right of plaintiff to have the cause trans-ferred to the law side of the court under the statute.' On appeal,it was contended that this decree was not final, because the statuteenabled the plaintiff to have the cause transferred to law and triedthere, so that the decree was not appealable. Held: The decree wasfinal as to the equitable jurisdiction of the trial court, and wasappealable as a decree "adjudicating the principles of the cause"!Murray v. Price.The purpose of allowing the transfer of causes from oneforum to the other is not to do away with the distinction betweenlaw and equity." The court is not under a duty to transfer acause on its own motion,' nor to recast the pleadings after such atransfer." Nor is it authorized to hear law and chancery causestogether.' The purpose of the statute authorizing such a transferwas to test the practicability of code pleading in a modified form."In equity, its use has been confined to cases where this is the most1W. VA. REv. CODE (1931) c. 56, art. 4, § 11, "No case shall be dismissedsimply because it was brought on the wrong side of the court, but when-ever it shall appear that a plaintiff has proceeded at law when he shouldhave proceeded in equity, or in equity when he should have proceeded at law,the court shall direct a transfer to the proper forum, and shall order suchchange in, or amendment of, the pleadings as may be necessary to conformthem to the proper practice; and without such direction, any party to thesuit shall have the right, at any stage of the cause, to amend his pleadingsso as to obviate the objection that his suit or action was not brought on theright side of the court." This statute was copied from VA. CODE (1919) §6084.2 W. VA. REV. CODS (1931) c. 58, art. 5, § 1(g), authorizes an appeal "in anycase in chancery wherein there is a decree or order . . . . adjudicating theprinciples of the cause". This statute was taken from VA. CODE (1860) c.182, § 2.8172 S. E. 541 (W. Va. 1933).'Conway v. American Nat. Bank of Danville, 146 Va. 357, 131 S. E. 803(1926).5 Conway v. American Nat. Bank of Danville, supra n. 4.8 French et al. v. Stange Mining Co. et al, 133 Va. 602, 114 S. E. 121(1922)."Conway v. American Nat. Bank of Danville, supra n. 4.8 Burks, "The Code of 1919", 5 VA. L. REG. (n. s.) 97, 120 (1919).1Farr: Appeal and Error--Decree "Adjudicating the Principles of the CausPublished by The Research Repository @ WVU, 1934WEST VIRGINIA LAW QUARTERLYpractical method of remanding the plaintiff to the law court; andit will not be applied when the result would be a misjoinder ofcauses° of of parties0 in the action at law. A transfer to the lawside of the court will not be given when the interests of the partieshave been protected by an issue out of chancery with the sameresult as a trial by jury at law, even though there should havebeen a transfer." Since the statute is primarily for the benefit ofthe plaintiff rather than the defendant, the plaintiff can waivehis right to transfer the cause, or suffer a dismissal rather thanto proceed at law.' In an action at law, the plaintiff can preventa transfer to equity when the only purpose is to allow the de-fendant to assert a defense available only in equity."'The purpose of authorizing an appeal from a decree adju-dicating the principles of the cause is to enable a party to havean appellate review of the case without waiting for the final de-cree, but the statute does not extend the classification of appeal-able decrees indefinitely.? To be appealable the decree must adju-dicate all of the principles of the cause raised by the pleadingsor otherwise, in the sense of settling every right" of each partyto the suit. It is sufficient that the decree impliedly settle these0 Brame v. Guarantee Finance Co., 139 Va. 394, 124 S. E. 477 (1924).20 French et al. v. Stange Mining Co. et al., supra n. 6.I Sacks et al. v. Theodore, 136 Va. 466, 118 S. E. 105 (1923) (The trialcourt committed the error of setting the verdict aside, so the case was dis-missed on appeal, which forced the plaintiff to go to law, after all).12 French et al. v. Stange Mining Co. et al., supra n. 6; Thomas Andrews& Co. v. Robinson et al., 155 Va. 362, 154 S. E. 154 (1930). (The plaintiffwaived his right to a transfer by not seeking it until after the appeal fromthe trial court); Nash v. Harmon, et ux., 148 Va. 610, 139 S. E. 273 (1927)(In a proper case, the statute is mandatory until the right is waived).1 3 French et al. v. Stange Mining Co. et al., supra n. 6. (The plaintiffstood on his bill, and waiver of right to a transfer was an alternate groundfor the decision)."Dexter-Portland Cement Co. v. Acme Supply Co. Inc., 147 Va. 758, 133S. E. 788 (1926).wShirey v. Musgrave, 29 W. Va. 131, 144, 11 S. E. 914 (1886).1 Shlirey v. Musgrave, supra n. 15, (The decree left unsettled the amountand existence of part of the liens sought to be enforced, and awaited thejoining additional parties before settling these claims); Hill v. Als et als,27 W. Va. 215 (1885) (Suit to subject property to a judgment and deter-mine priority of liens, and held not appealable decree, for it left open thepriority of the liens); Shinn v. Shinn, 105 W. Va. 246, 249, 142 S. E. 63(1928) (Decree held not appealable for it only ordered partition of certainlands, and did not dissolve the partnership, which was one purpose of thesuit); Kinkead v. Securo, 112 W. Va. 671, 166 S. E. 382 (1932) (Decreemerely ordering a reference to ascertain facts is not appealable).17 Laidiey v. Kline's Admrt et al., 21 W. Va. 21 (1882); Shirey v. Mus-grave, supra n. 16; Blackshere v. Blackshere, 111 W. Va. 213, 215, 161 S.E. 27, 28, ("Finality of decree, in the sense that all issues must be decided,is required before an appeal can be obtained in those instances which involve2West Virginia Law Review, Vol. 40, Iss. 3 [1934], Art. 13https://researchrepository.wvu.edu/wvlr/vol40/iss3/13RECENT CASE COMMENTSrights,' but the mere opinion of the chancellor with no decreeadjudicating them is not enough." For an appeal it is not neces-sary that there be an actual enforcement of the relief sought," orthat the principles adjudicated be applied to the facts of the case. 'But there must be a decree putting these principles into effeet, forotherwise the appellant has suffered no prejudice.'Both of the statutes in question were taken from the Codeof Virginia, but they were not there construed together untilafter West Virginia had adopted the statute authorizing the trans-fer of causes from one forum to the other. In Virginia it hasbeen held that a decree dismissing a suit in equity, with leave totransfer the cause to the law court, is not final, but it is appeal-able as a decree adjudicating the principles of the cause?' Sincethe effect of such a decree is to deny to the plaintiff all of therelief sought in his bill, the case seems to be correct in the lightof both precedent and principle.-PAUL D. FARR.INSURANCE - FORFEITURE OF POLICY - INSANITY NOT ANEXCUSE FOR FAILURE TO NOTIFY INSURER AS TO TOTAL DISABILITY.- An insurance policy provided that, upon the insured's givingnotice of total disability before default in payment of premiums,further payment thereof would be ,excused during the disability.The insured was adjudged insane previous to the due date of apremium. While so incapacitated, the period of grace expired,that portion of subsection 1, which allows an appeal to any decree or order'adjudicating the principles of the cause' ").18 Reed v. Cline's Heirs, 9 Gratt. 136 (1852) (Bill to enforce a title bondfor sale of land, and after statute of limitations pleaded, court directed anissue to try whether the bond had been executed and lost. Held, that thisimpliediy adjudicates the plaintiff's right, as not barred by the statute oflimitations)."Armstrong v. Ross, 56 W. Va. 16, 48 S. E. 475 (1904).2Richmond v. Richmond, 62 W. Va. 206, 57 S. E. 736 (1907) (The de-cree ordered partition of certain lands, but the actual partition had not beenmade).2Wood et at. v. Harmison et aL, 41 W. Va. 376, 23 S. E. 560 (1895).'Garrett v. Garrett et als., 91 W. Va. 243, 112 S. E. 494 (1922) (Thedecree sustained a demurrer to an affirmative answer, but did not dismissthe answer or give any relief sought in the bill); Watson v. Wigginton, 28W. Va. 533, 552 (1886) (The trial court may correct the errors committed,or commit others, before enforcing the decree); Steenrod v. Railroad Co.,25 W. Va. 133 (1884).'Colvin et at. v. Butler, 150 Va, 672, 143 S. E. 333 (1928) ; Hodges & DeJarnette v. Thornton et al., 138 Va. 112, 120 S. E. 865 (1924).3Farr: Appeal and Error--Decree "Adjudicating the Principles of the CausPublished by The Research Repository @ WVU, 1934

Appeal and Error--Decree  Adjudicating the Principles of the Cause --Decree Dismissing a Suit in Equity With Leave to Transfer to Law

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Appeal and Error--Decree Adjudicating the Principles of the Cause --Decree Dismissing a Suit in Equity With Leave to Transfer to Law

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