Lee v. Lee et al. June 11, 1925.

Note: The following is taken from the September 1925 issue of The Virginia Law Register (volume 11), pp. 288–90.

LEE v. LEE et al.
June 11, 1925.
[128 S. E. 524.]

1. Appeal and Error (§ 77 (2)*—Decree is Not Appealable, Unless it is Final Decree, or One Which Adjudicates Principles of Cause.—Decree in equity suit for construction of wills is not appealable, unless it is final decree, or one adjudicating principles of cause, in view of Code 1924, § 6336, relating to appeals.

2. Appeal and Error (§ 76 (1)*)—“Final Decree,” from Which Appeal Can Be Taken, Defined.—“Final decree,” from which appeal can be taken, under Code 1924, § 6336, is one which terminates suit, or definitely determines rights of parties, and leaves nothing further to be done by court in cause, though it may still enter such decrees and orders as may be necessary to carry decree into execution.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]

3. Appeal anrd Error (§ 77 (2)*)—Decree in Suit for Construction of Wills, Rejecting and Disallowing Defendant's Pleas and Requiring Her to File Answer, Held Not Appealable as “Final Decree.”—In suit for construction of wills, decree rejecting and disallowing pleas of prior suit pending between same parties for same cause in another court requiring defendant to answer within certain time, was not “final decree,” from which appeal could be taken, under Code 1924, § 6336.

4. Appeal and Error (§ 92*)—Decree Adjudicating “Principles of the Cause,” so as to Be Appealable, Defined.—Decree in chancery, to be one “adjudicating principles of cause,” so as to be appealable under Code 1924, § 6336, must refer to principles which affect subject of litigation and rules by which court may determine right of parties in particular suit.

5. Appeal and Error (§ 92*)—Decree Rejecting Pleas of Prior Suit between Same Parties for Same Cause, and Requiring Defendant to Answer, Held Not Appealable as Adjudicating Principles of Prior Suit.—Decree in chancery, disallowing pleas of prior suit between same parties for same cause, and requiring defendant to answer, does not make final disposition of prior suit, so as to be appealable, within Code 1924, § 6336.

6. Appeal and Error (§ 92*)—Decree Rejecting Pleas of Prior Suit between Same Parties for Same Cause, and Requiring Defendant to Answer, Held Not Appealable, as Adjudicating Principles of Cause.—In suit for construction of wills, decree rejecting pleas of prior suit between same parties for same cause, and requiring defendant to answer, was not one adjudicating principles of cause, so as to be appealable, under Code 1924, § 6336.

7. Appeal and Error (§ 18*)—On Decision That Decree Under Review is Not Appealable, Supreme Court of Appeals Has No Jurisdiction to Decide Any Other Question.—In suit for construction of wills on appeal from decree rejecting pleas of prior suit between same parties for same cause, and requiring defendant to answer, on decision that such decree is not appealable, Supreme Court of Appeals is without jurisdiction to decide any other question.

8. Courts (§ 475 (1)*)—If Suit Last Filed Can Give Complete Relief to All Parties, Which Could Not Be Given in Prior Suit, Court in Which Second Suit is Brought Should Retain Jurisdiction.—As general rule, suit in which process is first issued and served has precedence; but where suit last filed can give complete relief to all parties involved, which could not be given in first suit, court in which second suit was brought should retain jurisdiction and grant complete relief.

9. Courts (§ 475 (1)*)—Court in Which Second Suit Was Started, Having Acquired Jurisdiction Over Subject-Matter and Persons of All Parties, Should Retain Jurisdiction, Regardless of Prior Suit in Another Court, Which Had Not Acquired Jurisdiction Over One Party.—Where court in which suit between parties interested in wills was brought had not obtained jurisdiction in personam of executor, without which it could not grant personal judgment against him, court in which subsequent suit for construction of wills was instituted should retain jurisdiction, in view of facts that bill therein was broader in scope than bill in prior case, and that it had obtained jurisdiction over subject-matter and over persons of all parties.

Appeal from Circuit Court, Fairfax County.

Suit by George Bolling Lee, in his own right and as executor of estate of W. H. F. Lee, decreased; against Mary M. Lee (Mrs. Robert E. Lee, Jr.), for construction of wills and other relief. From a decree rejecting and disallowing defendant's pleas, and requiring defendant to answer, she appeals. Appeal dismissed.

Jas. D. Johnston, of Roanoke, C. B. Northrop, of Washington, D.C., and Randolph G. Whittle, for appellant.

Thomas R. Keith and John S. Barbour, both of Fairfax, for appellees.

[Notes]

* For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes.