
    *Callaway v. Harding.
    June Term, 1873,
    Wytheville.
    Absent, Stapi.es, J.
    1. Appeal — Writ of Error and Supersedeas — Limitation. — The longest period of limitation within which a petition for an appeal, writ of error and supersedeas can be presented, is two years, nine months and ten days as to final judgments, decrees and orders rendered before the passage of the act of November 5th, 1870: and as to those since rendered such period of limitation is two years.
    2. Proviso of One Section of an Act--When Applied to Another Section. — A proviso to one section of an act cannot be applied to another section of the same act, unless it manifestly appears by reference to the whole act, that it was the intention that it should limit the operation of other sections than that to which it is appended.
    In an action of debt in the Circuit court of Roanoke county, in which John B. Harding was plaintiff and Peter Saunders, sr., Walter C. Callaway and others were defendants, a judgment was rendered in favor of the plaintiff against the defendants, on the 1st of September 1866, for $3,000, the amount of the negotiable note sued upon, with interest. On the 18th of November 1872 Callaway, one of the defendants, applied to a judge of this court for a writ of error to this judgment: and on the 27th of the same month the writ of error was awarded.
    At the next term of this court Harding moved the court to dismiss the appeal, as having been improvidently awarded.
    *EJarly, for the appellant.
    Blair and Edmondson, for the ap-pellee.
    The appellee, Harding, moves to dismiss the appeal granted in the cause, because the period in which, by law, the appellant had the right to present his petition for an appeal, had elapsed before he presented his petition. The judgment of the Circuit court of Roanoke county which it complained of, was rendered on the 3d day of September, 1866. The petition was presented in November, 1872, and the appeal was not completed until the 10th day of January, 1873, by the execution of the appeal bond on that day. So that more than six years had elapsed after the rendition of the judgment before either the petition was presented or the appeal perfected. The act of Assembly, passed June 23d, 1870 — session acts 1869-70 page 224, section 17, limits the right of appeal to two years, but contains a proviso that as to any judgment or decree rendered before the passage of that act, section 26 of chapter 182 of the Code of 1860 shall remain in full force, which 26th section gives five years in which to take an appeal. And while for the present we may admit that the proviso applies to this case, yet the limitation in the Code of 1860 wo.uld bar the right of appeal, for more than five years had ¿lapsed after the judgment before the appeal was taken.
    But we suppose, and in fact have been informed, that the appellants’ counsel relies upon the acts to stay the collection of debts, to relieve them from computation against them, of the period from the rendition of the judgment to the 1st day of January, 1869. The 1st section of the.stay law, passed March 2d, 1866, session acts 1865-6, page 181, only prohibits the issuing and enforcement of process to compel the payment of money, or sale of property, for that purpose. The 7th section of *same law, page 183, enacts that the period during which this act shall remain in force shall be excluded from the computation of the time within which by the operation of any statute or rule of law it may be neces-sar3>- to commence any proceeding to preserve or prevent the loss of any right or remedy. This 7th section, we contend, must be read, construed and applied -with the 1st section, and can only properly and legally b.e made to relieve against such obstructions of right and remedies as are interposed by the 1st section. The whole law must be read and construed together, and the 7th section be confined to apply to the other portion of the same chapter as analogous authority. We refer to the 19th section, chapter 149, page 594, Code 1849, as construed in Yarborough and Wife v. Dash-azo, 7 Gratt. 377.
    But if the most unrestricted effect could be given to the 7th section of the act, the prohibitions of the 1st section only extended to the 1st day of January, 1868; and from the 1st day of Janaruy, 1868, to the 10th day of January 1873, when the appellant completed his appeal by executing the appeal bond, more than five years had elapsed, and the right o'f appeal was barred. It is true that the prohibitions of the 1st section were continued in operation, to the 1st day of January, 1869, by act of Assembly, session 1866-7, page 726-7, but no where has the 7th section been re-enacted, or the period to which it applied been extended or enlarged.
    But we insist that the 7th section of the stay law, in no view, can be made to apply to the limitation on appeals. And the only one of the relief acts that were passed by the Legislature shortly after the close of the war, that applies to the computation of time as it affects appeals, is the act to preserve and extend the time for the exercise of certain civil rights and remedies — session acts 1865-6, page 191; and by that act the period *from the commencement of the war to six months after the organization of a Supreme court of Appeals, under the present government, was excluded. And as the said court whs certainly organized as early as the 24th April, 1866— see 17th Grattan — the time began to run in October, 1866, and more than five years had elapsed from that time before this appeal was taken. This act was passed on the 2d March, 1866, the same day, by the same Legislature that passed the stay law, and relates to the same subject. Thus being in pari materia, they are to be compared and construed together. For the rule on the construction of statutes we refer to opinion of Judge Moncure, in the case of Pox’s adm’rs v. Commonwealth, 16 Gratt. pages 8, 9, 10 and 11. But there was an act passed March 15th, 1867 — session act 1866-7, page 789, by whicli it was enacted that no petition should be presented for an appeal, writ of error, or supersedeas, to any final judgment, which shall have been rendered more than two years before the petition is presented; and estimating the appellant’s right of appeal from the date of the passage of that act, his right of appeal was forfeited on the 15th March, 1869; and admitting that the act as to appeal, acts 1869-70, page 424 ■ — was an implied repeal of the act of 15th March, 1867, yet the right of the appellee against having his judgment appealed from, had become such a vested right that neither the implied or express repeal of the act of 15th March, 1867, could deprive him of such vested rights. As to vested rights acquired under statute, see opinion of Judge Staples, in case of Crawford v. Halsted & Putnam, 20 Gratt. 211, 220.
    
      
      See principal case cited in Bolling v. Lersner, 26 Gratt. 42; Rogers v. Strother, 27 Gratt. 421 et seq.
      
    
   CHRISTIAN, J.,

delivered the opinion of the court.

This cause is before us upon a motion to dismiss the writ of error, upon the ground that it was improvidently *awarded. The judgment of the Circuit court of Roanoke county which is complained of, was rendered on the 3d day of September 1866. The petition for a writ of error was presented to one of the judges of this court on the 18th November 1872, and a writ of error awarded on the 27th of November 1872. Thus the period between the rendition of the judgment and the presentation of the petition for a writ of error was more than six years.

The third section of the act amending chap. 182, of the Code 1860, in relation to appeals, writs of error and . supersedeas, approved June 23d, 1870, is in these words: § 3. “No petition shall be presented for an appeal from or writ of error or supersedeas to any final judgment, decree or order, whether the commonwealth be a party or not, which shall have been rendered more than two years before the petition is presented ; nor to any judgment of a county or corporation court which is rendered on an appeal from a justice; nor to a judgment, decree or order of any other court where the controversy is for a matter less in value or amount than five hundred dollars exclusive of' costs, unless there be drawn in question a freehold or franchise, or the title or bounds of land, or some matter not merely pecuniary.” By the 17th section of the same act it is provided that “no process shall issue upon any appeal, writ of error ■or supersedeas allowed to or from a final judgment, decree or; order, if when the rec- \ ord is delivered to the clerk of the appellate ■court there shall have elapsed two years since the date of such final judgment, decree or order; but the appeal, writ of error or supersedeas, shall be dismissed whenever it appears that two years have elapsed since the said date before the record is delivered to said clerk, or before such bond is given as is required to be given before the appeal, writ of error, or supersedeas *takes effect: provided, however, that section twenty-six of chapter 182, of the Code of 1860, instead of this section, shall remain in full force, and apply to cases in which the appeal, writ of error or super-sedeas may be to any judgment or decree rendered before the passage of this act.”

Except the proviso contained in the 17th section, the only amendment to the sections in chapter 182 of the Code on the same subject, is to change the period of limitation from five years to two years, and the amount fixing jurisdiction, from one hundred to five hundred dollars, in the third section, and in the seventeenth section changing the period of limitation from five years to two years. Under these two sections (leaving out of view for the time the proviso of the 17th section, the effect of which will be considered presently,) it is plain, that in order to bring a case into this court two things must concur: 1st, a petition for appeal, writ of error or supersedeas must be presented within two years after the rendition of the final judgment, decree or order complained of and 2d, the record must be delivered to the clerk of the appellate court, and such bond be given as is required before the appeal, writ of error or super-sedeas takes effect, within two years from the date of such final judgment, decree or order.

It will be observed that there is no proviso or condition limiting the operation of the third section. That is explicit and mandatory that “no petition shall be presented” if more than two years have elapsed since the rendition of the final judgment, decree or order complained of.

There is no rule of construction by which a proviso to one section of an act can be applied to another section, unless it manifestly appears, by reference to the whole act, that it was the intention of the Legislature *that such proviso should limit the operation of other sections, than that to which it is appended. In the case we are considering, the two sections ($$ 3 and 17,) relate to distinct and independent provisions; the one (sec. 3) fixing the period of limitation within which the petition must be presented, the other (sec. 17) prescribing the period of limitation, within which process must issue.

The proviso declares that section twenty-six of chap. 182, Code 1860, shall remain in full force “instead of this section,” (sec. 17,) and apply to cases in which any judgment or decree was rendered before the passage of the act. It is therefore limited in terms to the 17th section, and could have referred to no other section in the act, because section twenty-six of the Code of 1860 prescribes the time within which process shall issue, and not the time within which a petition shall be presented.

But the intention of the Legislature in limiting the operation of the proviso to the seventeenth section, to which it is appended, is further shown by the various amendments which have been made to the 3d section of chap. 182, of Code of 1860, which corresponds with the 3d section of the act we are now considering. That section was first amended and re-enacted by an act passed March 15th, 1867. The only amendment by that act, was to change the period of limitation from five years to two years. This section was again amended and re-enacted by the act approved June 30th 1870; and the only additional amendment was to change the amount, fixing the jurisdiction of the appellate court from one hundred to five hundred dollars. This 3d section was again amended and reenacted by an act approved November 5th, 1870. The amendments to that act were contained in two provisos appended thereto, in *the following words:

“Provided, however, that the time from the 26th day of January 1870 to the passage of this act, shall be excluded from the computation of said period of two years: and provided further, that this act so far as appeals, writs of error and supersedeas heretofore allowed, shall be deemed and taken to have been passed and been in force since the passage of the act to which it is amendatory.”

Thus it will appear that athough the 3d section of chapter 182, (Code 1860), was three times amended and re-enacted, no similar proviso to that appended to the seventeenth section of the act under consideration, the effect of which was to extend the period of limitation from two to five years as to judgments and decrees rendered before the passage of this act, was ever incorporated in the 3d section. But on the contrary the only extension of the period of limitation as to the time within which a petition may be presented, is the time between the 26th January 1870 and the 5th of November 1870; to wit, nine months and ten days.

Upon the plain and obvious construction of the acts above referred to, we think it is clear that the longest period of limitation within which a petition for an appeal, writ of error and supersedeas can be presented, is two years, nine months and ten days as to final judgments, decrees or orders rendered before the passage of the act approved November 5th, 1870; and as to those rendered after the passage of that act, such period of limitation is two years.

As to what may be the effect of the 7th section of the act passed March 2d, 1866, known as the stay law, it is not necessary to refer to in this case; for conceding that the 7th section applies to appeals, writs of error, &c., in the case before us more than three years after the expiration the stay law had elapsed, before the petition for a writ of error was presented.

We are, therefore, of opinion, that the writ of error to the judgment of the Circuit court of Roanoke was improvidently awarded, and that the same be dismissed.

The judgment was as follows :

On the motion of John B. Harding, by his counsel, to dismiss the said writ of su-persedeas, as having been improvidently awarded, and for error of fact in awarding the same, the court is of opinion, for reasons stated in writing and filed with the record, that the said motion be sustained.

Therefore, it is considered and ordered that the same be sustained accordingly; and that the said writ of error and supersedeas be dismissed as having been improvidently awarded; and that the plaintiff in error do pay to the defendant in error, John B. Harding, his costs by him about his said motion expended. Which is ordered to be certified to the said Circuit court for Roanoke county.

Appeal dismissed.  