Commonwealth v. Moore's adm'r , 1 Gratt. 295 ( 1844 )

Baldwin, J.

delivered the opinion of the court.

The court is of opinion that the general rule of law, which exempts the commonwealth from the operation of the statutes of limitation, is applicable to original controversies, and not to cases in which the rights of the parties have been adjudicated by the judgment, decree, or sentence of a court of competent jurisdiction. In such cases, the question whether the merits of the judicial decision can be reviewed by another tribunal, must be governed by the laws prescribing and regulating the jurisdiction of the appellate forum. By the act of the general assembly of the 16th of April 1831, establishing the circuit superior courts of law and chancery, arbitrary appeals from the decisions of those courts to the court of appeals are prohibited; and the application for an appeal, writ of error or supersedeas directed to be made, in all cases, by petition to the court of appeals, or a judge thereof in vacation. And the act expressly provides, “ that no petition preferred to the court of appeals, or any judge thereof in vacation, for an appeal from, or writ of error or supersedeas to any final decree in chaneery, judgment, proceeding, sentence or order oí any circuit superior court of law and chancery, shall be received or allowed, unless the same shall be preferred within five years next after the date of such final decree J m t in chancery, or judgment, proceeding, sentence or order complained of.” It is clear from the provisions of this statute, that the judges of this court, whether in term timo or vacation, have no lawful authority to grant a supersedeas to a judgment of a circuit superior court, after the lapse of five years from the time of its rendition : and that it is their duty to withhold a consideration of the merits of the cause, though the objection be not taken by plea or otherwise; and even though it should be expressly waived by consent of the parties. Inasmuch, therefore, as the commonwealih,s application for the supersedeas in this case was not made till after the expiration of five years from the date of the judgment, it is considered by the court that the said supersedeas be dismissed as having been improvidently awarded. Which is ordered to bo certified to the circuit superior court of law and chancery of Henrico county and the City of Richmond on the common law side.