For article on "Rule of Decision in Appellate Court" under this section, see 7 Va. Law Reg. (N. S.) 321. Formerly section 3484 Code 1904, cited but not construed in Shiveley's Admr. v. N. & W., 125 Va. 384. Applied in Southern Amusement Co., v. Ferrell, 125 Va. 429, 99 S. E. 716. The supreme Court of Appeals under this section should first look to the evidence and the proceedings under the first trial, and if the court erred in setting aside the first verdict, the supreme court must annul all proceedings subsequent thereto and enter judgment thereon. Commander v. Provident, 126 Va. 455, 102 S. E. 89. Under this section the supreme court even if it has a doubt as to the correction of the conclusion of the trial, judge will not set the judgment aside, unless it appears that it is plainly wrong or without supporting evidence. Standard v. Walker, 127 Va. 140. This section applied in Dir.-Gen. R. R. v. Bryant, 127 Va. 651; Graham v. Commonwealth, 127 Va. 808, 105 S. E. 389. Under this section the supreme court can only reverse the judgment of the trial court if it appears that the judgment is plainly wrong or without evidence to support it. E. I. Dupont v. Brown, 129 Va. 112, 105 S. E. 660. See note of Clark v. Hugo, cited under section 6251. When a case is submitted to a trial judge without a jury, questions arising out of conflicts in testimony, or out of inferences to be properly drawn therefrom, are settled by the judgment of the trial court, and the appellate court is controlled by this section which provides that when a case is thus submitted, the judgment of the trial court shall not be set aside unless it appears from the evidence that it is plainly wrong or without evidence to support it. SmithGordon Co., v. Snellings, 130 Va. 528, 107 S. E. 651. In this case, although there was some conflict in the evidence upon the question whether the parties to a transfer of stock intended the transfer to carry a dividend already declared, but not yet paid, the findings of the court below, without the intervention of a jury, supporting the claim of the transferror, was neither plainly wrong nor without supporting evidence, and therefore, cannot be set aside. Atwood v. Huff, 130 Va. 624, 108 S. E. 562. Sec. 6365. For article by Judge Martin P. Burks on "The Code of 1919," citing this section, see 5 Va. Law Reg. (N. S.) 97. Where with the objectionable testimony admitted by the lower court stricken out, the case is not left in such condition that final judgment can be entered in the supreme court under the provisions of this section, it will be remanded for a new trial to be had in conformity with the opinion of the supreme court. Gallion v. Winfree, 129 Va. 122, 105 S. E. 539. Formerly a plaintiff in error stood in the supreme court in the position of a demurrant to the evidence, but this has been changed; now in stating a case in that court which has been tried by a jury, it must be stated as the jury may have viewed it, remembering always that the jury are the sole judges of the weight to be given to the testimony, and also bearing in mind the weight attached to the verdict of the jury which has received the approval of the trial judge. The law of the case, as fixed by the instructions of the trial court to which there were no exceptions, being with the defendant, the verdict for the plaintiff, being without evidence to support it, the supreme court, in pursuance of this section, will enter such judgment as is warranted by the undisputed facts of the case. The case could not be remanded to enable the plaintiff to change her position with reference to the law. Queen Ins. Co. v. Perkinson, 129 Va. 216, 105 S. E. 580. Where in an action by a shipper against a carrier it was conclusively shown that the carrier did not receive the goods, the supreme court will not remand the cause for a new trial, but will reverse the judgment, pursuant to this section. Director General v. Chandler, 129 Va. 418, 106 S. E. 226. This section applied in Upton v. Holloway, 126 Va. 657, 102 S. E. 54. Where the facts are fully before the court, and there is no reason to suppose that upon another trial any new or different evidence might be introduced which ought to affect the result, the supreme court will render judgment for the plaintiff in error, where in its opinion such judgment is proper. Fourth National Bank v. Bragg, 127 Va. 47. This section relates entirely to procedure in the appellate court, and was enforced when the opinion in the instant case was rendered. It does not confer any original jurisdiction upon the court, and none was exercised by the court in the instant case. Its enactment was clearly within the legislative power. Duncan v. Carson, 127 Va. 306, 105 S. E. 62. Where a case must be reversed and the facts before the supreme court are not sufficient for it to dispose of the case under this section, the case will be remanded to the court below for a trial de novo, to be had if the defendant in error is so advised. Latham v. Powell, 127 Va. 382, 103 S. E. 638. Under this section the supreme court reversed a judgment in favor of a plaintiff against the carrier on the ground that the contract of carriage was illegal, and dismissed the case. N. & W. Ry. Co. v. F. DeHart Dis. Co., 127 Va. 415, 103 S. E. 594. Proceeding under this section, the supreme court dismissed the case of Boice v. Finance, etc., Corp., 127 Va. 563, 102 S. E. 591. Where, in an action for personal injury, the jury were told to disregard a release executed by the plaintiff when a minor, the supreme court will not remand the case where they do not believe that the interests of justice require it, but will render final judgment upon the merits, crediting the judgment of the lower court with the amount received by the plaintiff by way of compromise, and affirming the judgment thus amended. Clinchfield v. Couch, 127 Va. 634, 104 S. E. 802. Formerly a plaintiff in error stood in the supreme court in the position of a demurrant to the evidence, but this had been changed by this section. Now in stating a case in the supreme court, which has been tried by a jury, it must be stated as the jury may have viewed it, remembering always that the jury are the sole judges of the weight to be given to the testimony of the witnesses, and also bearing in mind the weight attached to the verdict of the jury which has received the approval of the trial judge. Lorillard v. Clay, 127 Va. 734, 104 S. E. 384. The action of the court under this section in Lorillard v. Clay, 127 Va. 734, 104 S. E. 384, criticized in 6. Va. Law Reg. (N. S.) 619. Formerly section 3485, Code 1904. This section in terms authorizes a partial reversal and the entry by the appellate court of a judgment, the effect of which must be to affirm in part and to reverse in part the original judgment. It must follow that to the extent to which the judgment is affirmed, it is still valid and binding upon the original judgment debtor, and also upon the sureties in the supersedeas bond, who will be held to have entered into their contract with knowledge that their liability under it was to be controlled by the provisions of this section. National Surety Co. v. Commonwealth, 125 Va. 223, 99 S. E. 657. Where the facts proved do not establish any liability upon one of the defendants, and the evidence was as full as the circumstances of the case admitted of, and as could be reasonably expected on another trial and full opportunity was afforded the plaintiff to introduce evidence, the supreme court on reversal will, under this section, render judgment of dismissal as to that defendant. Va. Iron Co. v. Odle, 128 Va. 280, 105 S. E. 107. This section does not authorize the supreme court to change the decree of the lower court, except where such decree is reversed in whole or in part; hence, the supreme court in affirming a decree, dismissing a bill, for lack of equitable jurisdiction, cannot remand with direction to transfer the case to the law side of the court. Ewing v. Dutrow, 128 Va. 416, 104 S. E. 791. Under this section, it is the duty of the supreme court of appeals to enter such judgment, decree, or order, as to the court shall seem right and proper; therefore, where a complainant brings a suit in equity when his remedy is at law, the supreme court, in reversing the decree, will remand the cause to the lower court, with instructions to transfer the same to the law side for appropriate amendment of pleadings, and other proceedings in conformity with provisions of section 6084, Code 1919, notwithstanding the case was disposed of in the lower court before section 6084 became effective. Pence v. Tidewater, 127 Va. 447, 103 S. E. 694. This section and section 6251 do not apply to criminal cases. As to such cases the practice remains unchanged, and is controlled by section 4937. Henderson v. Commonwealth, 130 Va. 761, 107 S. E. 700. Sec. 6378. The plaintiff may from time to time, as need may require, sue out other and additional attachments, founded either on the original affidavit or on a new affidavit made for that purpose. Kaylor v. Davy Pocahontas Co., 118 Va. 369, 87 S. E. 551. The action is still a pending action after verdict, but before judgment, and an attachment as ancillary thereto may be sued out. Kaylor v. Davy Pocahontas Co., 118 Va. 369, S. E. 551. Under this section an attachment may be sued out not only at the time of the institution of the action, but at any time thereafter, pending the action. Kaylor v. Davy Pocahontas Co., 118 Va. 369, 87 S. E. 551. This section does not extend the equitable jurisdiction of the federal district court for Virginia, so as to give that tribunal jurisdiction over a suit on a West Virginia judgment wherein attachment under such statute was sought against property of the judgment debtor located in Virginia, for the judgment debtor was entitled to a jury trial on the issues open to him. Williams v. Miller, 249 Fed. 495. Where a judgment at law, rendered by the federal district court in West Virginia, was assigned to plaintiff's testator, and by plaintiff released through fraudulent misrepresentations, the release may be canceled in a suit brought in the State court of Virginia, sitting as a court of equity, and real estate may be attached to satisfy the judgment, and removal of such suit for cancellation and enforcement to the federal court by defendant therein does not deprive plaintiff of her rights. Miller v. Williams, 258 Fed. 216. See notes to preceding section, herein. Sec. 6383. For article by Judge Martin P. Burks on "The Code of 1919," citing this section, see 5 Va. Law Reg. (N. S.) 97. Judgment is "affirmed" within a supersedeas bond conditioned to satisfy it in such event to the extent that it remains unchanged by an amended judgment on appeal. National Surety Co. v. Commonwealth, 125 Va. 223, 99 S. E. 657. Sec. 6389. See notes to section 6378. Sec. 6390. See notes to section 6378. Sec. 6409. For article by Judge Martin P. Burks on "The Code of 1919," citing this section, see 5 Va. Law Reg. (N. S.) 97. Sec. 6411. Non-residents labor under no disability with respect to the right to institute or prosecute suit at any time to assert or preserve any right of action they may have. No such right is reserved to them by statute. On the contrary, when proceeded against by order of publication, etc., their rights in this respect are restricted and limited by this section and section 6072. Therefore, the non-residence of one coparcener has no bearing upon the question of fact as to whether the notoriety of the disclaimer and adverse claim of right of another coparcener in possession of the land was so long continued as to affect him with constructive notice thereof, save in so far as the distance he lived from the land and the adverse occupant and claimant and his lack of communication with those who knew such facts, may affect the question. Baber v. Baber, 121 Va. 740, 94 S. E. 209. A judgment against defendants in action of assumpsit is without effect upon the filing of defendant's petition under this section, which allowed them to make a defense against the judgment as if they had appeared in the case before the same was rendered; the judgment being rendered under attachment without personal service and upon non-resident defendants. Wessel, Duval & Co. v. Winborne & Co., 125 Va. 502, 99 S. E. 719. County of.. to-wit: This day. appeared before (court, judge or clerk),. who made oath before me that in a suit now pending in the the.. ....between...... plaintiff, and.. ...court for defendant, that the said plaintiff has a just cause of action against the said defendant for... of... the said defendant.. dollars, with interest thereon from the.. ..day 19........, and that there is a probable cause for believing that is about to quit this State, unless he be forthwith apprehended. Given under my hand the. Note that the statute provides that the affidavit shall be made before the court, judge in vacation or the clerk. Sec. 6426. Lien for work done and materials furnished by artisans, mechanics, lumber dealers, and others. All persons performing labor, or furnishing materials, of the value of ten dollars or more, for the construction, removal, repair, or improvement of any building or structure permanently annexed to the freehold, and all persons performing any labor or furnishing materials of like value for the construction of any railroad, shall have a lien, if perfected as hereinafter provided, upon such building or structure, and so much land therewith as shall be necessary for the convenient use and enjoyment thereof, and upon such railroad and franchises for the work done and materials furnished. But when the claim is for repairs or improvements only, no lien shall attach to the property repaired or improved unless such repairs or improvements were ordered by the owner, or his agent. As used in this chapter, the term "general contractor" shall include contractors, laborers, mechanics, and persons furnishing materials, who contract directly with the owner, and the term "sub-contractor" shall include all such contractors, laborers, mechanics, and persons furnishing materials, who do not contract with the owner but with the general contractor. For the purpose of this chapter, a well shall be deemed a structure permanently annexed to the freehold. (1922, p. 867. In force June 18, 1922.) For article on the "Examination of Titles in Virginia," see 5 Va. Law Reg. (N. S.) 817. Sec. 6427. That part of a mechanic's lien statute relating to creation of the lien must substantially be complied with, but the provisions regarding its enforcement will be liberally construed; section 6431, providing that no inaccuracy in the account or description of the property shall invalidate the lien if the description reasonably identifies the property, and the account conforms substantially with this section and that following, and is not false. H. N. Francis & Co., Inc., v. Hotel Rueger, Inc., 99 S. E. (Va.) 690. For article on "Or the Work thereon Otherwise Terminated," see 5 Va. Law Reg. (N. S.) 177. For article by Judge Martin P. Burks on "The Code of 1919," citing this section, see 5 Va. Law Reg. (N. S.) 97. Sec. 6428. Discussed, 3 Va. Law Reg. (N. S.) 464. That part of a mechanic's lien statute relating to creation of the lien must substantially be complied with, but the provisions regarding its enforcement will be liberally construed; section 6431, providing that no inaccuracy in the account or description reasonably identifies the property, and the account conforms substantially with sections 6427 and 6428, and is not false. H. N. Francis & Co., Inc., v. Hotel Rueger, Inc., 99 S. E. (Va.) 690. Where it satisfactorily appears from the evidence that there was no time after notice to the defendant of the claim of the subcontractors when he was indebted in any amount to the general contractor, he was under no liability towards the subcontractors. Maddux et al. v. Buchanan et al., 121 Va. 102, 92 S. E. 830. For article by Judge Martin P. Burks on "The Code of 1919," citing this section, see 5 Va. Law Reg. (N. S.) 97. Sec. 6429. For article by Judge Martin P. Burks on "The Code of 1919," citing this section, see 5 Va. Law Reg. (N. S.) 97. Sec. 6431. That part of a mechanic's lien statute relating to creation of the lien must substantially be complied with, but the provisions regarding its enforcement will be liberally construed; this section providing that no inaccuracy in the account or description of the property shall invalidate the lien if the description reasonably identifies the property, and the account conforms substantially with sections 6427 and 6428, and is not false. H. N. Francis & Co., Inc., v. Hotel Rueger, Inc., 125 Va. 106, 99 S. E. 690. Where a subcontractor's lien claimant was not a party to prior suits by other claimants and did not file its accounts until after the lien was barred by section 6433, its claim cannot be allowed in a later suit brought by the owner to determine the validity of the liens of respective claimants, to which suit all claimants became parties. H. N. Francis & Co. v. Hotel Rueger, 125 Va. 106, 99 S. E. 690. Sec. 6433. Formerly section 2481, Code 1904. See Francis v. Hotel Reuger, cited under section 6431, 99 S. E. 690. Sec. 6435 Under section 2482-a, Code of 1904, providing that no assignment or transfer of any debt due or to become due to a general contractor by the owner for the construction or repairing of any structure for such owner, shall be valid until the claims of all subcontractors, supply men, etc., against such general contractor for labor and materials furnished in and about the construction of such structure shall have been satisfied, it was held that the language of the act was too plain to need construction, and that its benefits could not be confined to subcontractors, material men, etc., who had perfected mechanic's liens, which in the case at bar it was admitted they could not have done because the owner of the building in question was a municipal corporation. London Bros. v. National Exchange Bk., 121 Va. 460, 93 S. E. 699. A former statute (section 2482a of Code 1904) is not only simple and unambiguous in its language, but its purpose is lawful as well as laudable, and is plainly manifest. There is no ambiguity therein, whether considered as a separate and independent statute or in connection with the mechanic's lien statutes. Section 2482-a discourages the assignment by the general contractor of any part of the debt due or to become due him by the owner for the construction of the building, by providing that such assignment shall not be valid or enforceable in any court of law or equity by any legal process or in any other manner by the assignee of any such debt, unless and until, the claims of all subcontractors, supply men and laborers against such general contractors for labor performed and material furnished in and about the construction, erection and repairing of such building, shall have been satisfied. London Bros. v. National Exchange Bk., 121 Va. 460, 93 S. E. 699. Sec. 6437. How liens are enforced; no priority except, et cetera. The liens created and perfected under the preceding sections of this chapter may be enforced in a court of equity by a bill filed in the county or city wherein the building, structure, or railroad, or some part thereof is situated, or wherein the owner, or if there be more than one, any of them, resides. The plaintiff shall file with his bill an itemized statement of his account, showing the amount and character of the work done or materials furnished, the prices charged therefor, the payments made, if any, the balance due, and the time from which interest is claimed thereon; the correctness of which account shall be verified by the affidavit of himself, or his agent. When suit is brought for the enforcement of any such lien against the property bound thereby, all parties entitled to such liens upon the said property |