
    Wytheville.
    Mason v. Mason.
    June 12, 1899.
    1. Appeal and Ebbob—Limitations—Bill of Review—Section SJ/55 of Gode.—No appeal lies from a final decree dismissing a bill of review to a decree rendered more than sis months prior to such final decree, unless the petition for such appeal be presented within sis months from the date of such final decree. Code, section 3455.
    On motion of appellee to dismiss the appeal as improvidently awarded.
    
      Appeal dismissed.
    
    A decree was pronounced May 31, 1893, adjudicating the principles of the case/ and dismissing appellant’s bill. On August 11, 1893, he -was permitted to file a bill of review based upon alleged after discovered evidence. On August 2, 1897, the bill of review was dismissed, and on February 16, 1898, the petition for this appeal was presented.
    
      W. E. Burns, for the appellee, insisted that the appeal should be dismissed, as improvidently awarded, and relied upon section 3455 of the Code, and Jordan v. Cunningham, 85 Va. 418.
    
      M. 8. K. Morrison, for the appellant, resisting the motion to dismiss, argued:
    I respectfully" submit that this motion should not prevail. Sec. 3455 of the Code does not apply to this case. The decree of August, 1897, is not a “decree refusing a hill of review.” The original hill was dismissed by the decree of May, 1893, The bill of review was filed August, 1893, by leave of court, after mature consideration by the court, and over the objection of the defendant (the appellee here). The effect of this bill of review was to introduce new elements into the controversy, to require new lines of procedure and the adjudication of other and new principles. In short-, a new and different case was made out and tried. This will appear from a consideration of the interlocutory decree of August, 1895, and from comparing it with the former decrees in the cause. The decree here appealed from, that of August 2, 1897, while it again decided the cause against the plaintiff and dismissed his bill of review, was in fact an adjudication upon the merits of an entirely new and distinct case. The word “ refusal ” cannot be extended to such a length. This bill of review was not refused; it was allowed; and on the new case made the bill was dismissed.
    
    Bo-uvier. “ Refusal. The act of declining to receive or to do something.”
    The case of Jordan v. Cunningham, 85 Va. 418, does not, as I think, hold contrary to the views expressed above. In that case the decree of October, 1884, decided that under the will of W. O. Jordan the share of Oscar D. Jordan went to Cunningham and not to James M. Jordan. The decree dismissing James M. Jordan’s bill of review, pronounced August, 1886, merely reiterated the principles of the decree of October, 1884. It did not decree on a new or a different case. The bill of review does not appear to have introduced any new elements into the ease, nor does it appear that the consent of the court was required for the filing of that bill. It does not appear but that the grounds of the bill were errors of law, and not newly discovered evidence as is the case here.
    
      It is true, as stated by Judge Bauntleroy, that the refusal to permit a bill of review to be filed is a refusal of the prayer of the bill. But suppose when new issues have been raised by the newly discovered evidence brought forward by a bill of review, the decree in such bill gives the plaintiff therein a part of his claim but not all, and he desires to appeal therefrom. Could it be held that this decree was a “ refusal ” of the bill? I think not. If not, would not the limitation to the appeal be twelve, and not six months. Suppose in this case, in accordance with the principles of the interlocutory decree of August, 1895, the plaintiff had by the final decree recovered, say, $5,000, but believed he should recover $15,000 and desired to appeal. Could it be contended that his bill had been “ refused? ” Certainly not. blow, after his bill had been allowed, and the new case made had proceeded to final decree and dismissal on the merits, where is the difference in principle from the proposition above stated?
    The converse of the proposition decided in the opinion of Judge Bauntleroy, supra, is not sound. It cannot be said always that the refusal of the prayer of a bill of review is, in the meaning of this statute, a refusal of the bill. It cannot be contended, I think, that the opinion in the case of Jordan v. Cunningham nor the effect of the decision goes so far as to establish the last-named proposition as a general legal principle. If it were meant to do so, it would be obiter dictum and not binding in the case under discussion. The decision of that case did not require, nor did it involve, the decision of so broad a principle as this. Bor the case there made, the decision may have been correct, but-I do not think it controls this case.
    Again, is not the narrow interpretation of this statute the correct one? Does it not mean a refusal to filet Certainly the language of the statute itself seems to indicate it. A contrary intention if it existed should be made clear. Is it not the policy of the statute to limit this period to bills of review filed for after discovered evidence alone?
   The following order was entered by the court:

Upon an appeal from and supersedeas to a decree pronounced by the Circuit Court of Bussell county on the 2d day of August, 1897.

Upon the calling of this case, the appellee, by counsel, moved the court to dismiss the appeal heretofore granted therein, upon the ground that the same was improvidently awarded, which motion the appellant, by counsel, opposed. And the court, having maturely considered said motion and the argument therein, is of opinion that the said appeal was improvidently awarded.

It is therefore ordered that the same be dismissed, and that the appellee recover of the appellant his costs by him in this behalf expended.

Which is ordered to be certified to the said Circuit Court of Bussell county.

Appeal dismissed.  