Chap. 499.—An ACT to amend and re-enact sections 3454, 3455, as amended by
an act of the general assembly approved January 18, 1888; sections 3457, 3459.
3460, 3465, 3466, 3467, 3469, 3471, 3474, 3485, 3488, and 3490 of chapter 170 of
the Code of Virginia, and to repeal sections 3453, 3468, 3473, 3482, 3483, and
3487 of said chapter of said Code.

Approved December 31, 1903.

1. Be it enacted by the general assembly of Virginia, That sections
thirty-four hundred and fifty-four, thirty-four hundred and: fifty-seven.
thirty-four hundred and fifty-nine, thirty-four hundred and sixty, thirty-
four hundred and sixty-five, thirty-four hundred and sixty-six, thirty-
four hundred and sixty-seven, thirty-four hundred and sixty-nine, thirty-
four hundred and seventy-one, thirty-four hundred and seventy-four,
thirty-four hundred and eighty-five, thirty-four hundred and eighty-
eight, and thirty-four hundred and ninety of the Code of Virginia be
amended and re-enacted so as to read as follows:

§ 3454. In what cases petitions for appeal, writ of error, or super-
sedeas may be awarded.—Any person who thinks himself aggrieved by
any judgment, decree, or order in a controversy concerning the title to or
boundaries of land, the condemnation of property, the probate of a will,
the appointment or qualification of a personal representative, guardian,
committee, or curator, or concerning a mill, roadway, ferry, wharf, or
landing, or the right of the State, county, or municipal corporation to
levy tolls or taxes, or involving the construction of any statute, ordinance,
or county proceeding imposing taxes, or by any final order, judgment, or
finding of the State corporation commission, irrespective of the amount
involved, except the action of the said commission in ascertaining the
value of any property or franchise of a railroad or canal company; for
the purpose of taxation and assessing taxes thereon, or any person who
is a party to any case in chancery wherein there is a decree or order dis-
solving an injunction, or requiring money to be paid, or the possession or
title of property to be changed, or adjudicating the principles of a cause,
or any person thinking himself aggrieved by the order of a judge or court
refusing a writ of quo warranto, or by the final judgment on said) writ,
or by a final judgment, decrce, or order in any civil case, may present a
petition, if the case be in chancery, for an appeal from the decree or order ;
and if not in chancery, for a writ of error or supersedeas to the judgment
or order, except as provided in section thirty-four hundred and fifty-five:
provided, however, that the Commonwealth may take an appeal from
the action of the State corporation commission in all cases, irrespective
of the amount involved.

§ 3457. Transcript of record to be exhibited with such petition; per-
son applying for transcript to notify opposite party or his counsel; cer-
tificate of clerk to transcript.—With such petition there shall be a tran-
script of the record of so much of the case wherein the judgment, decree,
or order is as will enable the court, or judge thereof in vacation, to whom
the petition is to be presented, properly to decide on such petition, and
enable the court, if the petition be granted, properly to decide the ques-
tions that may arise before it. The person intending to apply for such
transcript shall notify the opposite party, or his counsel, if either reside
in this State, of his intention, and no clerk of any court, nor the clerk of
the State corporation commission, shall make out and deliver such tran-
script unless it is made to appear that such notice was given. A certifi-
cate of the clerk stating the fact shall in every case accompany the tran-
script when presented to the appellate court or judge. It shall be suffi-
cient to give such notice to the attorney who appeared as counsel for the
adverse party in the court or tribunal which rendered the judgment, de-
cree, or order, unless such party has retained other counsel to represent
him in the appellate court and that fact is known to the petitioner, in
which case the notice shall be given to such counsel.
§ 3459. Where parties differ, the judge to decide.—If the appellee, or
defendant in error, or his counsel, desire any part of the record to be
copied, and the appellant or his counsel object to the same, the question
may be referred to the judge of the court or to the tribunal in which the
case was decided, who shall decide the same, and the clerk in making out
the transcript shall conform to instructions given him by such judge or
tribunal.

§ 3460. Parties may agree upon what shall be copied, or may agree
the facts to be copied in lieu of complete record.—The parties, or their
counsel, may agree upon such part of the record: to be copied by the clerk
as they think will enable the appellate court properly to decide the case,
or they may agree the facts, or any part of them, to be copied by the
clerk in lieu of the complete record. Such agreement, however, shall not
affect the right of either party to correct any mistake. Nothing con-
tained in this and the three preceding sections shall preclude the appellate
court, or judge thereof in vacation, from awarding a writ of certiorari
in a proper case upon the application of either party.

§ 3465. To whom presented ; endorsement of judge thereon.—The pe-
tition may be presented to the supreme court of appeals, or to a judge
thereof, and if it be presented to a judge, he shall endorse thereon the
day and year he receives it.

§ 3466. When to be rejected; when rejection final.—The petition shall
be rejected when it is from an interlocutory decree or order, if the court
or judge to whom it is presented deems it proper that the case should be
proceeded in further in the court below before an appeal is allowed
therein. If the court shall deem the judgment, decree, or order com-
plained of plainly right, and reject the petition on that ground, and the
order of rejection so states, no other petition therein shall afterwards be
entertained. But the rejection of such petition by a judge in vacation
shall not prevent the presentation of such petition to the court at its next
term.

§ 3467. When appeal, et cetera, allowed ; when supersedeas awarded.—
The court or judge to whom a petition is duly presented, if of opinion
that the decision complained of ought to be reviewed, may allow an ap-
peal, writ of error, or supersedeas, and in a case of appeal (as well as of
a writ of error) may award! a supersedeas to stay proceedings either in
whole or in part.

§ 3469. In what court appeal, et cetera, to be docketed; what process
to issue.—Every appeal, writ of error, or supersedeas shall be docketed in
the supreme court of appeals, at the place of session, where it may be
heard and determined according to sections thirty hundred and eighty-
nine, thirty hundred and ninety, thirty hundred and ninety-one, thirty
hundred and ninety-two, and thirty hundred and ninety-three. The clerk
of the said court shall issue a summons against the parties interested,
other than the petitioners, that they may be heard, and also issue any
supersedeas which may be awarded.

§ 3471. When and by whom taken; endorsement on process from court
of appeals.—Such bond shall be taken by the clerk of the State corpora-
tion commission, in which an appeal is entered of right, before such entry,
or where an appeal, writ of error, or supersedeas is allowed on petition,
before process is issued thereupon. The clerk of the supreme court of
appeals shall endorse on the summons or supersedeas that it is not to be
effectual until such bond be given before the clerk of the court below,
who shall take said bond and endorse on the process that it has been given,
and the names of the sureties therein.

§ 3474. Limitation of appeals, writ of error, or supersedeas.—No pro-
cess shall issue on an appeal, writ of error, or supersedeas, allowed to or
from a final judgment, decree, or order, if when the record, with the peti-
tion required by section thirty-four hundred and fifty-seven, is delivered:
to the clerk of the appellate court there shall have elapsed one year since
the date of such final judgment, decree, or order, or six months if the
decree appealed from was a decree refusing a bill of review to a final
decree rendered more than six months prior thereto. No such process
shall issue upon an appeal, writ of error, or supersedeas allowed to a final
judgment, order, or finding of the State corporation commission if, when
the record, with the petition required by law, is delivered to the clerk of
the appellate court, there shall have elapsed one year since the date of
such final judgment, order, or finding, or six months in those cases in
which by law the period of six months is prescribed as the period within
which such appeal, writ of error, or supersedeas may be allowed. The
appeal, writ of error, or supersedeas shall be dismissed’ whenever it ap-

rs that one year or six months, as the case may be, has elapsed since
the said date before the record, with the said petition, is delivered to such
clerk, or before such bond is given as is required to be given before an
appeal, writ of error, or supersedeas takes effect: provided, that the time
which shall elapse from the presentation of the petition for an appeal,
writ of error, or supersedeas, and the delivery of the record, with the peti-
tion required by law, to the clerk of the appellate court as aforesaid,
shall be excluded from the computation of the said period of one year or
six months, as the case may be.

§ 3485. Decision of appellate court.—The appellate court shall affirm
the judgment, decree, or order if there be no error therein, and reverse
the same, in whole or in part, if erroneous, and enter such judgment,
decree, or order as the court whose error is sought to be corrected’ ought
to have entered. The assent of at least three of the judges shall be re-
quired for the court to determine that any law is or is not repugnant to
the Constitution of this State or of the United States; and if, in a case
involving the constitutionality of any such law, not more than two of the
judges sitting agree in opinion on the constitutional question involved,
and the case cannot be determined without passing on such question, no
decision shall be rendered therein, but the case shall be reheard by a full
eourL; and in no case where the jurisdiction of the court depends solely
upon the fact that the constitutionality of a law is involved shall the court
decide the case upon its merits, unless the contention of the appellant
upon the constitutional question be sustained. Whenever the requisite
majority of the judges sitting are unable to agree upon a decision, the
case shall be reheard by a full bench, and any vacancy caused by any one
or more of the judges being unable, unwilling, or disqualified to sit shall
be temporarily filled in the manner prescribed by law.

§ 3488. When clerk of court of appeals to transmit its decisions.—

When any term of the court of appeals is ended, or sooner, if the court so
direct, the clerk thereof shall certify, and by mail or otherwise transmit
its decision to the clerk of the court below or State corporation commis-
sion, as the case may be, except that it shall not be his duty to certify or
transmit a copy of a decree or judgment of affirmance unless the appellee
or defendant in error shall have paid all fees due from him in the case,
or shall endorse on such copy so much of the decree or judgment, for the
benefit of the clerk, as the unpaid fees shall amount to. If any clerk fail
to comply with this section for twenty days, except as aforesaid, he shall
forfeit fifty dollars to any person aggrieved thereby.

§ 3490. How decision of court of appeals entered in court or State
corporation commission from which cause came; issue of execution
thereon, et cetera.—The court and the State corporation commission
from which any case may have come to the court of appeals shall enter
the decision of the appellate court as its own, and execution or other ap-
propriate process may issue thereon accordingly. When that decision is
received by the clerk of the court or tribunal below, he shall enter it of
record in his order book, and thereupon such execution may issue and
such proceedings be had in the case as would have been proper if the
decision had been entered in court.

2. Be it further enacted, That sections thirty-four hundred and fifty-
three, thirty-four hundred and sixty-eight, thirty-four hundred and
seventy-three, thirty-four hundred and eighty-two, thirty-four hundred
and eighty-three, and thirty-four hundred and eighty-seven of the Code
of Virginia be, and the same are hereby, repealed.

3. This act shall be in force on and after the first of February, nine
teen hundred and four.