Epes, J.,
delivered the opinion of the court.
A. L. Warthen served continuously as treasurer of Warren county from November 3, 1915, to his death on November 9, 1928. At the time of his death he was insolvent and was heavily indebted, as treasurer, to the Commonwealth of Virginia, to Warren county and to the county school board; but there is no evidence which tends to show that any part of this indebtedness arose prior to January 1, 1920.
When Warthen qualified for the four-year term beginning January 1,1920, he gave bond in the penalty of $60,000, with ten persons as his surety. When he qualified for the four-year term beginning January 1, 1924, he gave bond in the penalty of $43,000, with The Aetna Casualty and Surety Company as his surety. Upon his qualification for the four-year term beginning January 1, 1928, he gave bond in the penalty of $60,000 with the National Surety Company as surety. Each of these three bonds is conditioned for the. faithful discharge of his office or trust as treasurer of Warren county.
In September, 1927, The Aetna Casualty and Surety Company instituted proceedings under section 5771, Code of Virginia 1919, to require Warthen to give a new bond, and thereby relieve it from future liability as his surety. Though Warthen did not give a new bond, the court entered an order on October 13, 1927, adjudging that The Aetna Casualty and Surety Company be and was relieved from future liability as surety on Warthen’s official bond after noon of that day, but did not remove him from office. On October [27]*2724, 1927, however, it entered an order removing Warthen from office for failure to give a new bond as treasurer in the penalty of $60,000, as had been required by the court in a second order entered by the court on October 13. War-then moved the court to suspend the order of removal of October 24 to permit him to apply for a writ of error; and on October 31 the court suspended the order of removal1 upon his giving a suspending bond, dated October 31, 1927, in the penalty of $63,000, with forty-six persons as his sureties. Warthen applied for and was granted a writ of error and supersedeas, and on November 19, 1927, gave a supersedeas bond in the penalty of $63,000, with thirty-eight persons as his sureties. On September 12, 1928, this writ of error and supersedeas was “dismissed agreed.”
After Warthen’s death the “board of supervisors of Warren county and S. B. Downing, treasurer of Warren county, at the relation of the board of supervisors of Warren county and the county school board of Warren county” instituted this suit against the administrators and heirs of A. L. Warthen and the sureties on the five bonds above mentioned. In addition to the parties above mentioned, the bill also made parties defendant the sureties on the official bond given by Warthen for his four-year term of office beginning January 1, 1916. On September 16, 1926, certain persons had entered into an agreement with Aetna Casualty and Surety Company to indemnify it against all liability which it might incur on or after that date as surety on Warthen’s bond; and in its answer and cross-bill Aetna Casualty and Surety Company made these persons parties defendant.
The purposes of the bill are (1) to have the court determine the amount due by Warthen, as treasurer, to the Commonwealth of Virginia, (2) to procure an adjudication as to the portions of such indebtedness for which the sureties on his several bonds are liable, respectively, and [28] (3) to recover from the sureties on his several bonds the amounts for which they, respectively, are liable to Warren county and the county school board of Warren county.
It is, in effect, admitted that at his death Warthen, as treasurer, was indebted to the Commonwealth in the sum of $2,424.74, and to Warren county in the sum of $81,142.12 (which includes the amount due by him to the county school board) ; and that for his indebtedness to the Commonwealth the National Surety Company is alone of the sureties on his bonds liable.
In so far as the decree of the court relates to Warthen’s indebtedness to the Commonwealth and to the liability of the National Surety Company therefor, it is not appealed from, and may be dismissed from our attention. The real questions in issue relate to the respective liabilities of the sureties on his several bonds to the county and the county school board.
It is not necessary here to relate in detail the pleadings filed in the trial court or here, further than to say that they are sufficient to raise all the questions herein considered.
The cause was referred to a commissioner in chancery who, in due course, made his report. The court confirmed this report in part, but in many of the most essential particulars overruled it, and entered a decree which was, in effect, as follows:
(1) It is not proven that any part of Warthen’s defalcations occurred prior to January 1, 1924; and the sureties on Warthen’s official bond for the term beginning January 1, 1920, are not liable for any part of his indebtedness.
(2) The defalcations occurring from January 1, 1920, to and including October 13, 1927, amounted to $53,833.74; and The Aetna Casualty and Surety Company is liable to Warren county for these defalcations to the full amount of the penalty of its bond ($43,000), with interest thereon from October 13, 1927.
(3) The Aetna Casualty and Surety Company was relieved by the order of October 13, 1927, of the liability for [29] defalcations or indebtedness of Warthen occurring after noon on October 13, 1927; and it is not liable for any defalcations occurring after that date. There is no liability on the sureties on the suspending bond.
(4) No defalcations occurred between October 13 and November 19, 1927; but defalcations to the amount of $5,-581.89 occurred between the execution of the supersedeas bond on November 19, 1927, and January 1, 1928, for which amount, with interest from January 1, 1928, the sureties on the supersedeas bond are liable to Warren county; but they are not responsible for the defalcations of Warthen made prior to October 13, 1927.
(5) Defalcations to the amount of $22,126.512 occurred after January 1,1928, for which amount, with interest from November 13, 1928, the National Surety Company is liable to account to Warren county.
(6) The Aetna Casualty and Surety Company paid to Warren county on February 18, 1931, $17,121.74 on account of its liability as surety on Warthen’s bond, and the balance due by it is $35,302.26, with interest from February 18, 1931.
(7) Since Warthen’s death a net amount of $2,286.41 has been collected on tax tickets for years prior to 1927 which were in his hands at the time of his death, and a net amount of $4,096.16 has been collected on tax tickets for the year 1927 which were in his hands at the time of his death, which sums were paid over to S. B. Downing, treasurer of Warren county, on April 22, 1930. The sum of $2,286.41 is to be applied to that part of Warthen’s indebtedness which arose prior to October 13, 1927, which is not recoverable under the bond of The Aetna Casualty and [30] Surety Company. The sum of $4,096.16 is to be applied pro rata to the reduction of the indebtedness for which the sureties on the supersedeas bond and the National Surety Company are liable—$835.24—to the amount for which the sureties in the supersedeas bond are liable, and $3,260.94 to the amount for which the National Surety Company is liable.
(8) The sum for which the sureties on the supersedeas bond are liable is $5,581.80 with interest from January 1, 1928, subject to a credit of $835.24 as of April 22, 1930.
(9) The total amount of the defalcations of Warthen for which National Surety Company is liable to Warren county is $22,126.51 with interest from November 13, 1928, on which it is entitled to a credit as of April 22, 1930, of $3,260.94. National Surety Company paid to Warren county on February 18, 1931, $23,991.90, which has resulted in an overpayment of its liability by National Surety Company to the amount of $2,352.83, which amount it is entitled to be reimbursed by Warren county.
(10) The cross-bill of Aetna Casualty and Surety Company is dismissed against the indemnitors of that company as surety on Warthen’s official bond for the term beginning January 1, 1924.
(11) The bill is dismissed as to the sureties on War-then’s official bonds for the terms beginning January 1, 1916, and January 1, 1920.
The decree also makes a number of specific rulings upon which its final determinations above mentioned are based, and in so far as may be necessary these will be mentioned later.
From this decree an appeal has been allowed to Aetna Casualty and Surety Company; and both the complainants below and the sureties on the supersedeas bond have assigned cross-error. We shall not here set out the several assignments of error and cross-error, but shall refer to them as we take up the consideration of the several questions which they raise.
[31] It will tend to clarity of treatment to dispose at this time of several questions which arise as to the effect of the orders entered and bonds given in the proceedings had in 1927 relative to the release of Aetna Casualty and Surety Company from liability on Warthen’s official bond and the removal of him from office; and we shall consider these questions before taking, up the other questions raised by the several assignments of error and cross-error. To do this with clarity it will be necessary to restate more fully some of the facts to which we have made reference above.
Prior to September 12, 1927, Aetna Casualty and Surety Company filed a petition in the Circuit Court of Warren county, in which it prayed that Warthen be required to relieve it from further liability as surety on his official bond by giving a new bond, and that if he failed to give a new bond that he be removed from office. Warthen requested Aetna Casualty and Surety Company to dismiss this petition, and in a writing dated September 12, 1928, requesting the dismissal of this petition, he agreed as follows: “It is distinctly understood that this petition is dismissed without prejudice and may be reinstated and filed again at any time that the Aetna sees fit upon giving me seven days’ notice and I hereby agree that seven days shall be deemed a reasonable notice.” Pursuant to this request the petition was dismissed.
The State Accountant made an audit of Warthen’s accounts as treasurer as of September 8,1927; and on September 12, 1927, addressed a letter to the board of supervisors of Warren county in which he reported what this audit showed. This report was that Warthen was indebted to the county in the sum of §55,601.84, which amount, however, was subject to a credit for such 1926 tax tickets as should thereafter be allowed to him as delinquent taxes; that at this time the delinquent list for 1926 had not been presented for allowance by Warthen to the proper authorities, but the tax tickets for which he claimed allowance amounted to §375.30, and that the amount on deposit [32] in bank to Warthen’s order as treasurer was $10,895.44. In short, that he owed the county $44,331.40 more than he had on hand or on deposit in bank to his order as treasurer.
After this report had been made, The Aetna Casualty and Surety Company again filed its petition in the Circuit Court of Warren county in accordance with section 5771, Code of Virginia 1919. This petition stated that the petitioner desired to be relieved from future liability on War-then’s official bond; and prayed “that an order be entered requiring the said Arthur L. Warthen immediately to give a new bond securing the remainder of his said term of office as treasurer of Warren county, Virginia, and upon his failure so to do, that he shall forthwith be removed from his said office; that if a new bond is given by the said Arthur L. Warthen within the time required by the court, an order may be entered relieving your petitioner from all liability which may thereafter accrue upon its said bond now outstanding.” The petitioner gave notice to Warthen that it would on October 1, 1927, file this petition in the Circuit Court of Warren county, which notice was served on War-then in person on September 23, 1927.
The petition came on to be heard on October 1, 1927, on which day the following report was made to the judge of the circuit court by the board of supervisors of Warren county:
Report op Board op Supervisors to Judge op the Circuit Court op Warren County.
“Front Royal, Va., October 1, 1927.
“To the Hon. Philip Williams:
“Judge of the Circuit Court of Warren county, Va.
“The board of supervisors of Warren county, Virginia, beg leave to report that they have had a settlement with the treasurer of Warren county, Virginia, Mr. A. L. War-then, as directed by section 2719 of the Code of Virginia, [33] and in conformity with the directions contains in your letter of September 20, 1927, directed to the chairman of our board.
“We have examined the audit of State Accountant, W. F. Smyth, dated September 12, 1927, which audit covers the period from November 25, 1926, to September 8, 1927, and find the same correct and formally adopt it as our reprt, which shows that A. L. Warthen, treasurer, is indebted to the county of Warren, Virginia, as of September 8, 1927, in the sum of $55,601.84.
“We desire to credit the treasurer’s account with the following items, which have been alowed or paid by him between the 8th day of September, 1927, and October 1st, 1927: [Those items aggregate $4,015.15.]
“The treasurer presented delinquent capitation and personal property tax tickets, amounting to $2,102.74, for which he claims credit. Of this amount the Auditor allowed credit for $375.30, leaving a net credit of $1,727.44, as above allowed, which item is subject to final action thereon required by law.
“The board of supervisors therefore reports that A. L. Warthen, treasurer of Warren county, Virginia, is indebted to said county in the sum of $51,586.69.
“We requested to be informed as to what amount, if any, was on deposit in any bank, to the credit of the treasurer of Warren county, but were not informed as to this.
“There was exhibited to us cash in the treasurer’s office, amounting to $1,002.00, by Francis C. Jones, clerk, which amount he is entitled to credit against the audit balance shown above.
“Respectfully submitted,
“Jno. M. Lake, Chairman,
“G. Catlett,
“L. H. Fristoe,
“John B. Earle,
“Board of Supervisors of Warren county, Va.
[34] “The board requested the delivery of the $5,000.00 road bond, which was reported to have been paid by the treasurer, for cancellation; the same having been promised to be produced today, but the treasurer not being present at today’s meeting, and the clerk being asked about the bond, stated that he knew nothing about it.
“A Copy, Teste: Marvin A. Trout, Clerk.”
Upon the hearing on October 1, the court entered the following order, which was duly served upon Warthen on that day:
“Aetna Casualty and Surety Company,
“vs.
“Arthur L. Warthen
“This cause came on this first day of October, 1927, to be heard upon the petition of The Aetna Casualty and Surety Company, to be relieved from suretyship on the official bond of Arthur L. Warthen, treasurer of Warren county, pursuant to notice duly served upon the said Arthur L. Warthen:
“Thereupon, the said petitioner, by counsel, moved the court to grant the prayer of the said petition forthwith, and the said A. L. Warthen, appearing by his son, Gibson R. Warthen, requested that he be given thirty days time in which to execute a new bond.
“The petitioner suggested that it would consent to the entry of an order on the 13th day of October, 1927, to relieve its suretyship on the said bond of Arthur L. Warthen, from that date and that the time should be extended to said Arthur L. Warthen until said date to give a new bond.
“The court being of the opinion that the penalty of the said bond required of Arthur L. Warthen, as treasurer of Warren county, should be fixed at sixty thousand dollars ($60,000.00) in order to comply with .the statute requiring the penalty of the treasurer’s bond to be not less than fifty per centum of the amount to be received by him annually.
[35] “Upon consideration of all of which, and it appearing to the satisfaction of the court, that reasonable notice of the intended motion of The Aetna Casualty and Surety Company to be relieved from suretyship on the bond of A. L. Warthen, has been given the said Arthur L. Warthen;
“It is ordered, adjudged and decreed that the said Arthur L. Warthen shall, not later than the hour of twelve o’clock, noon, on the 13th day of October, 1927, give a bond in the penalty of sixty thousand dollars ($60,000.00), in the form and with surety satisfactory to this court, for the faithful discharge of his duties as treasurer of Warren county; or upon default thereof that he shall be forthwith removed from his office as treasurer of Warren county, as required, by the statute in such cases made and provided.
“The motion of the petitioner to be relieved of its surety-ship, as prayed for in said petition, shall be continued until the 13th day of October, 1927, at which time an order shall be entered to relieve it from suretyship on the bond . of Arthur L. Warthen, as prayed for in said petition.
“It is ordered that copies of this order shall be forthwith served upon the said Arthur L. Warthen and upon the board of supervisors of Warren county, Virginia.”
On October 13th, Warthen failed to give the new bond required of him by the order of October 1, 1927; and thereupon the court entered the two orders below quoted, which, in effect, constituted one order, and were duly served upon Warthen on October 13th.
Order of October 13, 1927, Relieving The Aetna Casualty and Surety Company as Surety.
“The Aetna Casualty and Surety Company
“vs.
“Arthur L. Warthen
“This cause came on this 13th day of October, 1927, to be heard upon the petition of The Aetna Casualty and Surety Company to be relieved from suretyship on the official bond of Arthur L. Warthen as treasurer of Warren county.
[36] “It appearing that by an order entered in this cause on the 1st day of October, 1927, of the entry of which order the said Arthur L. Warthen had notice both from his appearance in court when the same was entered and by service of a copy of the order upon him, it was provided that this court would this day enter an order to relieve said surety, and the said Arthur L. Warthen was given until the hour of twelve o’clock noon of this day to enter into a new bond.
“It further appearing that proper notice of this pendency of the said petition was served upon the said Arthur L. Warthen.
“It is ordered, adjudged, and decreed that The Aetna Casualty and Surety Company be, and it hereby is, relieved from suretyship on the official bond of the said Arthur L. Warthen as treasurer of Warren county, Virginia, from and after the entry of this order; but this order shall not relieve said surety from liability for any breach of said bond which may have taken place prior to the hour of twelve o’clock, noon, of the 13th day of October, 1927, and its full liability as surety on the said bond to the hour and date specified shall be in no way affected by this order.
“It is further ordered that this order is entered and shall be effective at twelve o’clock, noon, this the 13th day of October, A. D., 1927.”
Order op October 13, 1927, Requiring A. L. Warthen to Give Bond as Treasurer op Warren County
“It appearing that The Aetna Casualty and Surety Company has by order this day entered been relieved from suretyship on the official bond of A. L. Warthen, treasurer of Warren county; and that by order of this court the said A. L. Warthen was required to give a new bond this day in the penalty of sixty thousand dollars; but the said A. L. Warthen now appearing in open court, by counsel, [37] and requesting an extension of ten days time within which to give said required bond;
“It is ordered that the said A. L. Warthen shall not later than eleven o’clock, A. M., on the 13th day of October, 1927, give bond, in form and security satisfactory to this court, in the penalty of sixty thousand dollars for the faithful performance of the duties of the office of treasurer of Warren county, and that upon his failure so to do, he shall be forthwith removed from office.
“It is further ordered that the said A. L. Warthen shall this day file with the clerk of this court a statement in writing showing all moneys on deposit in bank and in his possession by virtue of his office as treasurer of Warren county, and that during the period from the entry of this order until the date when he is required to give bond, as herein provided, that he shall file with the clerk of this court each day a statement showing all moneys received and disbursed as treasurer of Warren county.
“It is further ordered that the said A. L. Warthen shall not receive the tax tickets for taxes and levies for the current fiscal year and that he shall not receive any payment for such taxes and levies until he shall have given the bond required by this order.
“It is ordered that a copy of this order be served upon the said A. L. Warthen forthwith.”
On October 24th, Warthen failed to give the bond required by the orders of October 1st and 13th, and the court entered the following order which was duly served on War-then, on the chairman of the board of supervisors, and the superintendent of schools, and a copy thereof mailed to the Auditor of Public Accounts and the State Accountant.”
Order of October 24,1927, Removing Warthen from Office.
“This matter came on in the Circuit Court of Warren county, this 24th day of October, 1927, pursuant to the [38] order entered by this court on the 13th day of October, 1927, which required Arthur L. Warthen to give bond in the penalty of sixty thousand dollars for the faithful performance of his duties as treasurer of Warren county, not later than the hour of eleven o’clock, A. M., on the 24th day of October, 1927.
“The said Arthur L. Warthen, now appearing in open court, by counsel, and requesting that further time be given him within which to comply with said order, the court deems it proper to set forth the circumstances which impel it, in the exercise of the discretion with which it is vested, to deny this request for further time.
“As required by statute, the State Accountant, under date of September 15, 1927, notified the judge of this court to the effect that by audit of the accounts of Arthur L. War-then, treasurer of Warren county, made to September 8, 1927, the balance due the several accounts in the said treasurer’s office amounted to the sum of $44,331.10.
“On October 1, 1927, the board of supervisors of Warren county made a report in writing to the judge of this court, to the effect that the balance due from Arthur L. Warthen, treasurer of Warren county, to the several accounts in his office, amounted to the sum of $51,586.69; and they further reported to the effect that they had requested to be informed as to what amount, if any, was on deposit in any bank to the credit of the treasurer of Warren county, but were not informed as to this; and that there was exhibited to them in cash in the treasurer’s office a sum amounting to $1,002.00 by Francis C. Jones, clerk, which amount should be credited against the audit balance shown by their report.
“On October 1, 1927, the judge of this court and the Commonwealth’s attorney of Warren county, acting under authority of section 2201 of the Code of Virginia, reqúested in the treasurer’s office of Warren county, the exhibit of the cash to balance the accounts of the treasurer. In response to this request the clerk in charge of the said office ex[39] hibited the sum of $823.81 in cash, and county warrants aggregating the additional sum of $178.19, which, it was stated, had that day been paid. The treasurer had been informed by letter from the judge of this court under date of September 26, 1927, that he would be expected to comply with the statute referred to, on October 1, 1927, but he was not present in his office.
“On October 1, 1927, pursuant to proper notice duly served upon Arthur L. Warthen, The Aetna Casualty and Surety Company, surety on the official bond of the treasurer of Warren county, petitioned this court to be relieved from suretyship on the said bond.
“Arthur L. Warthen appearing by his son, requested in open court thirty days time within which to give a new bond. The petitioner consenting, order'was entered continuing the motion until October 13, 1927, and requiring Arthur L. Warthen to give bond in the penalty of sixty thousand dollars for the faithful discharge of his duties as treasurer of Warren county, by not later than the hour of twelve o’clock, noon, on the 13th day of October, 1927. The penalty of the bond then in force, which had been fixed at the beginning of his term of office, was in the suw of forty-three thousand dollars.
“This order recited that the penalty of the bond, in the opinon of the court, should be fixed at sixty thousand dollars, in order to comply with the statute requiring the penalty of the treasurer’s bond to be not less than fifty per centum of the amount to be received by him annually.
“On October 13, 1927, this court entered an order relieving The Aetna Casualty and Surety Company from surety-ship on the official bond of A. L. Warthen, treasurer of Warren county. On the same day, Arthur L. Warthen appeared by counsel in open court and requested ten days time in which to give the bond required of him by the court; and thereupon the court entered an order requiring that Arthur L. Warthen should, not later than eleven o’clock, a. m., on the 24th day of October, 1927, give bond, [40] in form and security satisfactory to the court, in the penalty of sisty thousand dollars for the faithful performance of the duties of the office of treasurer of Warren county; and that upon his failure so to do, he should be forthwith removed from office.
“It now appearing to the court that the said Arthur L. Warthen has failed to give bond for the faithful performance of the duties of his office as treasurer of Warren county, as he was required to do by the order of the court entered on October 13, 1927;
“It is therefore ordered and adjudged, in accordance with section 5773 of the Code of Virginia, that the said Arthur L. Warthen is guilty of a breach of duty for failure to give bond as required by the former order of this court, and he is hereby forthwith removed from office as treasurer of Warren county; and the said office is hereby declared to be vacant.
“It is further ordered that, in compliance with section 2786 of the Code of Virginia, the said Arthur L. Warthen shall immediately make settlement with the board of supervisors of Warren county, of his accounts as treasurer of said county, showing the amount in his hands to be accounted for, and the fund to which the same belongs; and he shall deliver to his successor in office, upon the appointment and qualification of such successor, all bonds, books, and papers belonging to his office, and all money belonging to the county of Warren; and all other property, records, and money which he holds by virtue of his office as treasurer of Warren county.
“It is further ordered that, as required by section 2779 of the Code of Virginia, the said Arthur L. Warthen shall deliver to his said successor in office all tax tickets for taxes and levies for the current fiscal year, for which he has not accounted and paid into the treasury, taking the receipt of his said successor for same.
“It is ordered that copies of this order shall be forthwith served upon the said Arthur L. Warthen, and upon the [41] board of supervisors of Warren county, and upon the division superintendent of schools for Warren county; and that copied thereof shall be forthwith transmitted to the Auditor of Public Accounts, and to the State Accountant of the State of Virginia.”
In a second order entered on October 24th, the court recited that the court had not determined whom it would appoint to fill the vacancy in the office of treasurer, and ordered Warthen to deliver to the clerk of the court3 “all of the bonds, books, papers, money, property, records and tax tickets which the said Arthur L. Warthen was by the former order of this court this day made, required to deliver to his successor in office.”
On October 25th, Warthen moved the court to set aside the order of October 13th relieving The Aetna Casualty and Surety Company as surety on his bond. This motion the court overruled by its order of that date. Warthen then moved the court to set aside its order of October 24th removing him from office and to permit him to give bond with the National Surety Company as his surety, but with the proviso that the bond should contain certain reservations as to the surety’s liability. This motion the court also overruled by its order of that date.
On October 31st Warthen again moved the court to set aside “The order entered by the court on the 24th day of October, 1927,” and offered to give the bond required by that order with the National Surety Company as surety. This motion the court overruled. Warthen then signified his intention to apply for a writ of- error and supersedeas “to this order [i. e., the order of October 31st] and the order of October 24, 1927, and the order of October 13, 1927,” and moved the court to suspend “its judgment in the various orders.” Thereupon the court suspended for twenty days “this order and the order of October 2Jf, 1927,” upon condition that a suspending bond be given by Warthen in the penalty of $63,000 “conditioned as the law directs;” and [42] accepted a suspending bond in the penalty of $63,000, conditioned in accordance with section 6338, Code of Virginia 1919. This bond, which is dated October 31,1927, is executed by Warthen, as principal, and by forty-six persons as sureties.
Within the twenty-day suspension period, Warthen filed a petition for a writ of error and supersedeas to the order of October 13th relieving The Aetna Casualty and Surety Company as surety on his bond and also to the orders of. October 24th, 25th and 31st relating to his removal from office. A writ of error and supersedeas was allowed him by one of the judges of the Supreme Court of Appeals on October 17, 1927, the amount of the penalty of the bond being fixed at $63,000; and on November 19, 1927, Warthen executed a supersedeas bond in the penalty of $63,000, conditioned as required by section 6351, Code of Virginia 1919, with thirty-eight persons (the limit of each of whose liability is specifically set forth in the bond) as sureties.
On September 12, 1928, the Supreme Court of Appeals entered its order dismissing the writ of error and supersedeas. This order reads:
“Arthur L. Warthen * * * Plaintiff-in-Error vs. The Aetna Casualty and Surety Company and the Commonwealth of Virginia * * * Defendants-in-Error.
“Upon a writ of error and supersedeas to orders and judgments of the Circuit Court of Warren county entered on October 13th, October 24th, October 25th, and October 31, 1927. This day came the parties by counsel, and on motion of the plaintiff-in-error, it is ordered that this cause be dismissed agreed.”
The first question presented by the proceedings had, orders entered, and bonds executed in 1927, is this: Were the orders of October 13th relieving Aetna Casualty and Surety Company from its suretyship and the order of October 24th removing him from office void orders, or were they at most merely errroneous orders and of binding effect until reversed?
[43] The proceeding which resulted in the entry of the foregoing orders was begun as a proceeding under section 5771 and section 5773, Code of Virginia 1919; but with the filing of the report made by the board of supervisors to the judge of the court on October 1, 1927, it developed into a double barreled proceeding under those sections and section 280. The material parts of sections 5771, 5773, 280, and 281, in connection with which they are to be read and applied, are quoted in the footnote.4
Courts have no general common-law or statutory jurisdiction to relieve sureties from their liability on official bonds or to require officers to give new or additional bonds. Such jurisdiction as they have in these particulars is a special statutory jurisdiction. An examination of sections 5771, 5773, and 280, in connection with section 281, makes it plain that these sections do not confer upon the court power to relieve sureties on official bonds from liability thereon. They merely empower the court to enter an order requiring an officer to give a new bond, and, if he fails to comply with such order, to remove him from office. Such orders may result in relieving the surety, in whole or in part, from future liability on the official bond of the officer; but the court has no inherent power to grant the surety relief from his suretyship. The only relief the [44] surety can procure, by court order or otherwise, is such as follows as a legal consequence from the giving by the officer of a new bond or from his removal from office.
If the court, in pursuance of either section 5771 or section 280, orders the officer to give a new bond, and it is given and accepted, then by virtue of section 281 the sureties on his former bond are relieved of all future liability thereon; but the court is not empowered to enter any order which will relieve the sureties on the existing bond from future liability thereon until and unless a new bond is given and accepted.
If the officer fails to give a new bond as ordered, the court is empowered and required forthwith to remove him from office. Removal from office relieves the sureties on the bond of the officer from liability for any future acts done by the officer in his official capacity, because it terminates his official status; but it leaves the sureties liable for any subsequent misappropriation of property or funds which were in the hands of the officer at the time of his removal.
In so far as the order of October 13, 1927, purported to relieve The Aetna Casualty and Surety Company of future liability on the official bond of Warthen before a new bond was given and accepted, it was an order which [45] the court was without power or jurisdiction to enter under any circumstances, was void on its face, and ineffective for any purpose whatever. Where the court, as here, is exercising special statutory powers, the measure of its authority is the statute itself; and a judgment or order in excess of the powers thereby conferred is null and void. In such a ease, even though the court may have jurisdiction of the general subject matter and of the parties, an adjudication with reference thereto which is not within the powers granted to it is coram non judice. Freeman on Judgments (5th ed.) section 354; Black on Judgments (2d ed.) section 242, also section 171 and section 215; 33 C. J. p. 1076; Wade v. Hancock, 76 Va. 620, 624-626; Anthony v. Kasey, 83 Va. 338, 5 S. E. 176, 5 Am. St. Rep. 277; Barnes v. American Fert. Co., 144 Va. 692, 707, 130 S. E. 902; Bigelow v. Forrest, 9 Wall. 339, 19 L. Ed. 696; Armstrong v. Obucino, 300 Ill. 140, 133 N. E. 58; Armour Grain Co. v. Pittsburgh, C., C. & St. L. R. Co., 320 Ill. 156, 150 N. E. 650; Steenrod v. L. M. Gross Co., 334 Ill. 362, 166 N. E. 82; Wright v. Atwood, 33 Idaho 455, 195 Pac. 625; State v. District Court of Eighth Jud. Dist., 33 Wyo. 281, 238 Pac. 545; Title Guaranty & Surety Co. v. Foster, 84 Okla. 291, 203 Pac. 231. The last case cited was a case in which a surety sought relief from its suretyship under a statute very similar to section 5771, and is directly in point.
On the other hand, the order of October 24, 1927, removing Warthen from office, was an order which the court, under the special powers conferred upon it by the statutes above quoted, had the power to enter; and, if it was erroneous, it was a binding effectual judgment of the court until reversed. Wade v. Hancock, 76 Va. 620, 626.
The second question presented by the orders entered in October, 1927, and upon the writ of error thereto, is this: What effect did the dismissal of the writ of error and supersedeas have upon the orders of October 13th and of October 24, 1927?
[46] Section 6356 provides that except where the dismissal was for failure to pay writ tax, “After the dis-mission of an appeal, writ of error, or supersedeas, no other appeal, writ of error, or supersedeas shall be allowed to or from the same judgment, decree, or order.” This court has said in several cases that, by virtue of this section, the dismissal of a writ of error or appeal has the effect of affirming the judgment or decree appealed from;5 6but what is said in those cases must be construed in the light of the facts of those cases and the issue therein decided. While the dismissal of a writ of error is in a sense an affirmance of the judgment appealed from, it is an affirmance in a limited sense only.
Where the judgment appealed from is absolutely void upon its face because the court is without power to enter such a judgment in any event, and the writ of error is dismissed upon a ground which does not in any way bring into issue or involve the question whether it is void or not, the dismissal does not impart to the judgment any validity which it would not have had if there had been no appeal. It relieves the judgment from attack for error or irregularity which can be taken advantage of only upon an appeal or by some other direct proceeding to review the judgment of the trial court, but it does not operate to make the void judgment binding as an actual affirmance of the judgment by the appellate court would do as between the parties thereto. Sullivan v. Gage, 145 Cal. 759, 770-771, 79 Pac. 537; Morgan v. Clapp, 207 Cal. 221, 277 Pac. 490; Pender v. Felts, 2 Smedes & M. (Miss.) 535; Wilson v. Montgomery, 22 Miss. (14 Smedes & M.) 205; Jones v. Pharis, 59 Mo. App. 254.6
[47] It is contended, however, that as the order of dismissal states that the writ of error and supersedeas was “dismissed agreed,” the rule above announced with reference to the effect of a dismissal has no operation in the instant case. Whatever may be the effect in general of an order “dismissed agreed,”* **7 in this case it cannot make the rule above announced applicable, because the record here does not show that the county of Warren was a party to the agreement between Warthen and Aetna Casualty and Surety Company in accordance with which the writ of error was dismissed. No agreement made between Warthen and Aetna Casualty and Surety Company could have had the effect of releasing the latter from liability to the county of Warren on his bond; and no agreement between them that a void order releasing the company from liability to the county on his bond should be treated as a valid order could have had that effect.
Our conclusion is that the order of October 13th relieving The Aetna Casualty and Surety Company was void and ineffective to relieve it from liability to the county on War-then’s official bond, and has remained so, notwithstanding the fact that the writ of error Was “dismissed agreed.”
The next two questions presented by the proceedings had in October, 1927, and upon the writ of error to the order therein entered are these:
Did the suspending order of October 31, 1927, and the [48] supersedeas allowed by one of the judges of this court, have the effect of continuing Warthen in office, pending his appeal, until his then term of office expired?
If so, did Aetna Casualty and Surety Company remain bound as surety on his official bond until the end of his term on December 81, 1927?
The trial court did not expressly pass upon these questions, but its decree seems to be predicated upon the conclusion that the first question should be answered yes, and the second question no. And all counsel in the case seem to have assumed, without discussion of the point, that the effect of the suspending order and the supersedeas was to continue Warthen in office until the end of his term. For the reasons stated we are of the opinion that both of these questions are to be answered yes.
During the early days of the Commonwealth a supersedeas was an independent process by which the record was brought up for review by a superior court and further proceedings in the cause in the court below were stayed. White v. Jones, 1 Wash. (1 Va.) 116; Burwell v. Anderson, 2 Wash. (2 Va.) 194; Wingfield v. Crenshaw, 3 Hen. & M. (13 Va.) 245; Day v. Pickett, 4 Munf. (18 Va.) 104. But it is now, and has long been, in practice at least, merely an auxiliary process used as an adjunct to an appeal or a writ of error. Burks’ Pleading and Practice (2d ed.) page 746.
Its scope as an auxiliary process under the existing statutes of Virginia is defined in section 6348, Code Va. 1919, as amended by Acts 19.£2, page 47, chapter 45, which so far as is here material reads:
“The court or judge, to whom the petition is duly presented, if of opinion that the decision complained of ought to be reviewed, may allow an appeal or writ of error, and in either case may award a supersedeas to stay proceedings in whole or in part.” (Italics ours.)
It operates to stay all further proceedings on the judgment, or as to any matter embraced .therein. Its effect is [49] to prevent the enforcement of the judgment to any further extent than has been had at the time it becomes effective, and, thereby, to preserve the status quo at the time the supersedeas becomes effective. But it does not vacate or annul, even conditionally, the judgment, or impair its validity and effect as a judgment; nor does it operate retrospectively to undo what has already been done thereby or thereunder, or to restore and maintain the status quo existing at the time the judgment appealed from was rendered. Hence, what has been done thereby or thereunder before the supersedeas takes effect is upheld by the authority of the judgment; but after the supersedeas becomes effective, and while it remains in effect, what is done under authority of the judgment or toward its further enforcement is invalid, because the prospective authority of the judgment has been, in effect, suspended by the supersedeas. White v. Jones, 1 Wash. (1 Va.) 116; Hudgins v. Marchant, 28 Gratt. (69 Va.) 177; Morriss v. Garland’s Adm’r, 78 Va. 215, 229; Bristow v. Home Bldg. Co., 91 Va. 18, 20 S. E. 946, 947; Martin v. South Salem Land Co., 94 Va. 28, 26 S. E. 591; Runyon v. Bennett, 4 Dana (34 Ky.) 598, 29 Am. Dec. 431; Powell v. Florida L. & Imp. Co., 41 Fla. 494, 26 So. 700; Haddick v. District Court, 164 Iowa 417, 145 N. W. 943; Randles v. Randles, 67 Ind. 434; Relph v. Randles, 67 Ind. 600; Dulin v. Pacific Wood, etc., Co., 98 Cal. 304, 33 Pac. 123; 3 C. J. (Appeal and Error), section 1446 et seq.; 2 R. C. L. p. 122 et seq.
To the extent that a judgment has become executed at the time a supersedeas thereto becomes effective, the supersedeas is without effect, and where a judgment has become fully executed at the time a supersedeas becomes effective, the supersedeas has no effect, because there is nothing upon which it can operate. White v. Jones, 1 Wash. (1 Va.) 116; Hudgins v. Marchant, 28 Gratt. (69 Va.) 177; Bristow v. Home Bldg. Co., 91 Va. 18, 20 S. E. 946, 947, a case in which a receiver had been appointed and had taken possession; Virginia, Tenn. & Car. Steel, etc., Co. v. Wilder, [50] 88 Va. 942, 14 S. E. 806, a cáse in which a receiver had been appointed and had not taken possession; Allen v. Church, 101 Iowa 116, 70 N. W. 127; Randles v. Randles, 67 Ind. 434; Relph v. Randles, 67 Ind. 600; Dulin v. Pac. Wood, etc., Co., 98 Cal. 304, 33 Pac. 123; and cases cited in note 9, post.
Some judgments are self-executing8 9(that is, require no affirmative action of the court, or action under a process issued by the court, to execute them), and are fully executed when they are rendered. For instance, a judgment quieting title to land which is in the possession of the plaintiff is fully executed when the judgment is rendered. Some judgments are self-executing in part, as for instance, a judgment for money which is made by operation of law a lien on the real estate of the judgment debtor from the time the judgment is rendered. Such a judgment is self-executing in so far as the establishment of the lien is concerned, but not in so far as the enforcement of the lien or the payment of the money is concerned. Others are not self-executing in whole or in part, as for instance, a judgment in favor of the plaintiff in an action of ejectment.
Generally, where a judgment is self-executing, if its execution of itself has not been stayed or postponed by the court rendering it, a supersedeas thereof does not have the effect of suspending the operation of the judgment pending a decision by the appellate court.9 A judgment [51] removing an officer from office is self-executing, and if its execution of itself is not stayed or postponed by the court rendering it, a writ of error and supersedeas to the judgment does not have the effect of continuing the officer in office pending a decision of the appellate court. Welch v. Cook, 7 How. Pr. (N. Y.) 282; McVeany v. Mayor, etc., of City of New York, 80 N. Y. 185, 36 Am. Rep. 600; People ex rel. Dibelka v. Reinberg, 263 Ill. 536, 105 N. E. 715, L. R. A. 1915E, 401, Ann. Cas. 1915C, 343; Fawcett v. Superior Court of Pierce County, 15 Wash. 342, 46 Pac. 389, 55 Am. St. Rep. 894; Allen v. Robinson, 17 Minn. 113 (Gil. 90) ; Honey v. Davis, 38 Tex. 63; State v. Meeker, 19 Neb. 444, 27 N. W. 427; Jayne v. Drorbaugh, 63 Iowa 711, 17 N. W. 433; People v. Stephenson, 98 Mich. 218, 57 N. W. 115; Fylpaa v. Brown County, 6 S. D. 634, 62 N. W. 962; State ex rel. Craig v. Woodson, 128 Mo. 497, 31 S. W. 105; State v. Wilson,