APPEAL AND ERROR-Continued.
Counties. Appeal from disallowance of claim against county-Jury
trial. Lambert v. Board of Supervisors, 62.
Criminal Law.-See infra, "Inconsistent Positions."
Accused stands as on a demurrer to the evidence. Marshall v.
Commonwealth, 541.
Decree Dissolving an Injunction and Adjudicating the Principles
of the Case.-A decree which dissolved an injunction, dismissed the
bill at complainants' costs and disposed of the whole case, ad-
judicates the principles of the case and is appealable. Good v.
Board of Supervisors, 399.
Demurrer. Rights of the respective parties where judgment sustaining
demurrer to notice of motion for judgment for interference with
plaintiff's business is reversed. Shreck v. Virginia Hot Springs Co.,
Grounds of Demurrer.-Grounds must appear in record. Jayne v.
Kane, 27.
Diversion of Watercourse.-See infra, "Conclusiveness of Verdict."
Error, Writ of.-See infra, "Probate of Will."
Evidence but Facts not Certified.—In a case entirely of circumstantial
evidence where the facts proved are not certified by the trial court,
but the bills of exceptions contain a certificate of the evidence only,
the Supreme Court of Appeals can only consider the evidence offer
ed by the Commonwealth and will not grant a new trial unless after
rejecting all the parol evidence for the exceptor, and giving full
faith and credit to that of the adverse party, the decision of the
court below still appears to be wrong. In other words, the appellate
court in considering the case must discard all the evidence intro-
duced by the prisoner, and admitting the truth of the Common-
wealth's evidence, the inquiry always is: Is the verdict contrary
to the evidence? And if the case be one entirely of circumstantial
evidence, the further inquiry is: Are the circumstances given in
evidence of such a character and tendency as to produce upon
and unprejudiced mind a moral conviction of the guilt of the accused
beyond all reasonable doubt? Woods v. Commonwealth, 491.
Final Judgments and Decrees.—See infra, "Adjudicating the Princi
ples of the Cause;" "Decree Dissolving an Injunction and Adjudi-
cating the Principles of the Case;" "Interlocutory Decree."
The jurisdiction of the Supreme Court of Appeals is appellate only,
except in cases of habeas corpus, mandamus, or prohibition (Consti-
tution, section 88), and until the trial court has decided something,
it is without jurisdiction to review the action of the trial court. In
order to give the court jurisdiction of an appeal in a chancery
suit,
the decree sought to be reviewed must be a final decree, or one dis-
APPEAL AND ERROR-Continued.
Final Judgments and Decrees.-Continued.
solving an injunction, or requiring money to be paid, or the posses-
sion or title of property to be changed, or adjudicating the prin-
ciples of the cause. Mathieson Alkali Works v. Virginia Banner Coal
Corp., 89.
Trial Court Still in Session when Appeal was Taken.—In the instant
case there was a motion to dismiss the appeal on the ground that the
decree was not final, as the trial court was still in session when the
appeal was taken, and no appeal would lie for the reason that the
trial court had control over the decree until the adjournment of the
term at which it was rendered. Held: That there was no merit in
this contention. Good v. Board of Supervisors, 399.
Fraud. See infra, "Conflicting Evidence."
Harmless Error.-See INTOXICATING LIQUORS.
Inconsistent Positions.-Trial of case on theory that offense was a
misdemeanor, contention in appellate court that offense was a felony.
Kelley v. Commonwealth, 522.
The appellate court is not designed as an arena for the display of
the ingenuity and technical skill of counsel, but to attain, as nearly
and as speedily as may be, the ends of justice; and parties litigant
may not play fast and loose with the court by taking inconsistent
positions at different stages of the proceedings in court. Kelley v.
Commonwealth, 522.
Injunction. See infra, "Decree Dissolving an Injunction and Adjudi-
cating the Principles of the Case."
Instructions.-See MALICIOUS PROSECUTION.
Conflicting Instructions.-Conflicting instructions calculated to
mislead the jury constitute reversible error. Virginia-Tennessee
Motor Truck Corp. v. Wilson, 260.
Interlocutory Decree. It is not unusual for the Supreme Court of Ap-
peals to refuse an appeal from an interlocutory decree until the case
is more fully developed on its merits. Such a refusal does not bar a
subsequent application when the case has been so developed, and
especially after a final decree has been entered. The Supreme Court
of Appeals was of the opinion that the instant case should take that
course, and for that reason the present appeal was dismissed as im-
providently awarded, and without prejudice to the appellant to ap-
ply for an appeal from a final decree in the cause, or from a decree
adjudicating the principles of the cause, after the parties had sub-
mitted their evidence. Mathieson Alkali Works v. Virginia Banner
Coal Corp., 89.
APPEAL AND ERROR-Continued.
Issues to the Jury.-See IsSUES TO THE JURY.
Reversal and remand with direction that an issue out of chancery
be ordered where the Supreme Court of Appeals is not satisfied that
justice had been attained. Dull v. Dull, 370.
Direction of Issue out of Chancery.-Where, in a chancery cause, an
issue of fact is involved and on appeal the appellate court is not satis-
fied that the ends of justice have been attained, it will reverse and
remand the cause, with directions to empanel a jury to determine
said issue. Dull v. Dull, 370.
Judgment by Appellate Court.-Breach of Warranty.—In the instant
case, an action for damages for breach of warranty of an automobile,
the plaintiff failed to make out its case against defendant and there
was no evidence in the record to support the verdict for plaintiff.
Therefore, the judgment of the trial court was reversed, the verdict
of the jury set aside, and judgment entered by the Supreme Court
of Appeals, pursuant to section 6365 of the Code of 1919, dismiss-
ing the plaintiff's action. Ford Motor Co v. Switzer, 383.
Limitation of Actions.-See infra, "Conclusiveness of Verdict;" "Con-
flicting Evidence."
Limitation Upon Appeal.-The limitation for an appeal is purely
statutory. The Constitution does not in any way deal with the
period in which an appeal shall be applied for. Kennedy Coal Corp.
v. Buckhorn Coal Corp., 37.
Appeal Before Adjournment of Term.-Where an appeal is from a
final decree the limitation on the time within which it must be ap-
plied for begins to run from the date of the decree and not from the
time of the adjournment of the term at which by operation of law it
becomes final. It follows, therefore, that an appeal may be taken
from a decree, although the term at which it was rendered has not
adjourned. Good v. Board of Supervisors, 399.
Moot Question.-See SEARCHES AND SEIZURES.
Motion for Judgment.-See infra, "Demurrer."
Motor Bus Licenses.-Appeal from superintendent of police not a con-
stitutional right. Taylor v. Smith, 217.
Motor Vehicle Carriers.-See MOTOR VEHICLE CARRIERS.
Nature of Appeal.-An appeal, as is well settled in this State, is not the
institution of a new suit, but the removal and continuation of an old
one. Good v. Board of Supervisors, 399.
New Trial. See infra, "Remand for New Trial."
Orders Which Lower Court May Make.-See infra, "Power of Lower
Court over the Parties."
APPEAL AND ERROR-Continued.
Power of Lower Court Over the Parties.-Although,perhaps, an appeal
in a chancery cause does not here, any more than in England, stop
the proceedings under the decree from which the appeal is taken,
yet there can be no manner of doubt but that the effect of an appeal,
when fully perfected by the execution of the proper supersedeas bond,
is to deprive the subordinate court of all power over the parties and
the subject matter of controversy, until the cause is remanded back
for its further action; and the only orders, therefore, which that
court can rightfully make are such as are needful for the preserva-
tion of the res and rights of the parties pending the appeal. Good v.
Board of Supervisors, 399.
If after an appeal has been taken from a decree the lower court at
the same term at which the decree was rendered sets aside the de-
cree and enters an order during the same term granting the same re-
lief that could be afforded by the appeal, it should be treated as if
it were an order for the preservation of the rights of the parties pend-
ing the appeal, and, upon filing a duly authenticated copy thereof in
the appellate court, the appeal should be dismissed, as this would
afford the same measure of relief as could be obtained by the appeal,
and do it more speedily and at less cost, and would certainly be an
order of which the appellant could not complain. Good v. Board of
Supervisors, 399.
Presumption in Favor of Judgment or Decree of Lower Court.-The
presumption of the law is in favor of the correctness of the judgment
of the lower court, and the Supreme Court of Appeals will not re-
verse unless error affirmatively appears by the record. Jayne v.
Kane, 27.
Probate of Will.-The right of appeal from the order of a clerk admitting
a will to probate is more in the nature of an appeal than a writ of
error. McGlothlin v. Keen, 84.
Record. See EXCEPTIONS, BILL OF.
Evidence but Facts not Certified. See infra, "Evidence but Facts
not Certified."
Grounds of Demurrer.-Where the lower court overrules a demurrer
and the grounds of demurrer relied on in such court do not appear in
the record, the Supreme Court of Appeals must sustain the action of
the lower court in overruling the demurrer. Jayne v. Kane, 27.
Reference.-See REFERENCE.
Remand. See infra, "Issues to the Jury."
Remand for New Trial.-When upon other grounds a case is remanded
by the Supreme Court of Appeals for a new trial that court will not
express any opinion as to the merit or demerit of an assignment of
error relating to the refusal of the trial court to set aside the verdict
of the jury as contrary to the law and the evidence. Marshall v.
Commonwealth, 541.
APPEAL AND ERROR-Continued.
Terms of Court.-Appeal before adjournment of term. Good v. Board
of Supervisors, 399.
Verdict. Conclusiveness of Verdict.—See infra, "Conflicting Evidence."
In the instant case, an action for damages for diversion of a water
course by a railroad company, it was claimed by the company that
the structure causing the diversion was permanent and that the
right of action accrued immediately upon its completion, and as
five years had elapsed since completion, the action was barred;
whereas plaintiffs claimed that no appreciable damage accrued until
several years after the completion of the structure and, therefore,
the action was not barred. Held: That this issue of fact was con-
cluded by a verdict in favor of plaintiffs. Southern Ry. Co. v.
Leake, 438.
Facts Established by Verdict.-Where a fact necessary to support a
verdict is a reasonable inference from the uncontroverted evidence,
it must be regarded on appeal as an established fact in the case.
Chesapeake & O. Ry. Co. v. Nixon, 351.
Verdict Contrary to the Evidence.—See infra, “Evidence but Facts
not Certified."
Vested Rights.-Decree from which an appeal will lie. Kennedy Coal
Corp. v. Buckhorn Coal Corp., 37.
Warranty. See infra, "Judgment by Appellate Court."
Waters and Watercourses.-See infra, "Diversion of Watercourse."
ARGUMENTS OF COUNSEL. See APPEAL AND ERROR; INTOXICATING
Defense of Another.-See HOMICIDE.
Self-Defense.-See HOMICIDE.
Evidence Sufficient to Support Verdict of Guilty.—On a prosecution
for homicide accused was found guilty of assault and battery. The
killing resulted from a mutual combat in which deceased was the
aggressor. The testimony for the Commonwealth was sufficient to
warrant the jury in finding that the accused at the time he fired the
fatal shot was successfully defending himself from any serious bodily
harm by the use of his hands, without use of any weapon; and that,
under the circumstances as they should reasonably have appeared to
the accused, he had no need for the use of any weapon, and hence was
not justified in the resort to the shooting in order to defend himself.
Held: That there was sufficient evidence to support the verdict.
Richardson v. Commonwealth, 467.
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