Allison's Ex'r v. Wood

• Decision Date: 18 January 1906
• Citation: 52 S.E. 559,104 Va. 765
• Parties: ALLISON'S EX'R . v. WOOD.
• Court: Virginia Supreme Court

52 S.E. 559

104 Va. 765

ALLISON'S EX'R .

v.WOOD.

Supreme Court of Appeals of Virginia.

Jan. 18, 1906.

1. Appeal—Amount in Controversy—Statutory Reduction of Amount—Effect.

Acts 1902-04, p. 590, c. 373, Code 1904, 1837, § 3455, reducing the minimum jurisdictional sum of the Supreme Court of Appeals on a writ of error to any "final judgment" from $500 to $300, adopted subsequent to the rendition of a judgment in a controversy involving less than $500, but prior to the adjournment of the term of court at which it was rendered, gives the Supreme Court of Appeals jurisdiction of a writ of error to review the judgment, for 'the judgment, for purposes of bringing a writ of error, was not final until the adjournment of the term.

[Ed. Note.—For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 199, 200.]

2. Same.

Acts 1902-04, p. 590, c. 373, Code 1904, p. 1837, § 3455, reducing the minimum jurisdictional sum of the Supreme Court of Appeals on a writ of error to any final judgment from $500 to $300, so as to make the section provide that no petition shall be presented for a writ of error to any final judgment which shall have been rendered more than one year before the presentation of the petition, nor to a judgment when the controversy is for a matter less in amount than $300, is remedial in its nature, and sufficiently comprehensive to apply as well to judgments rendered before, as to those rendered since, its passage.

[Ed. Note.—For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 199, 200.]

3. Payment—Presumptions—Lapse of Time.

Presumption of payment arising from lapse of time is repelled by evidence of nonpayment, and on the issue facts reasonably tending to establish the improbability of payment are admissible.

[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Payment, § 188.]

4. Same—Evidence—Admissibility.

In a suit brought in 1901 on a bond executed in 1873 and payable one day after its date, evidence of the record in an action and an ancillary attachment proceeding instituted in 1881 against defendant on the bond including the judgment erroneously rendered for plaintiff in the action and sundry executions issued on the judgment which had been sent to various counties of the state in the effort to reach defendant's property was admissible to rebut the presumption of payment arising from lapse of time, though defendant was not legally served with process in the action.

5. Appeal—Harmless Error—Exclusion of Evidence.

The error in excluding the record of an action and judgment therein was not cured by the admission of testimony showing that an execution had been levied on property belonging to defendant, for plaintiff had the right to submit the entire record.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4200-4208.]

6. Evidence—Reputation.

Evidence that a nonresident of the state paid his hotel and drug bills and other incidental expenses during his periodical visits to the state was incompetent to establish general reputation for financial standing and promptness in paying debts.

Error to Circuit Court, Culpeper County.

Action by J. B. Allison's executor against Calvin Wood. There was a judgment for defendant, and plaintiff brings error. Reversed.

Barbour & Rixey, for plaintiff in error.

Grimsley & Miller, for defendant in error.

WHITTLE, J. On May 25, 1873, the defendant in error, Wood, executed a bond for $140, payable one day after date, to Allison, plaintiff in error's testator, at which time both the obligor and obligee resided in Washington county, Va. Allison died in the year 1879, and the same year Wood removed from Washington county and settled in the Valley of Virginia, where he remained until the year 1883 or 1884, when he became a resident of the state of North Carolina. After his removal to North Carolina it was his custom to make occasional trips to Virginia, varying from a week to a month in duration, for the purpose of dealing in live stock.

The bond was found among Allison's papers after his death, and in the year 1901 his executors, taking advantage of one of Wood's periodical visits to Virginia, instituted an action of debt thereon against him in the circuit court of Culpeper county. There was a verdict and judgment for the defendant, and the plaintiff brings error.

We are met at the threshold of the inquiry by a motion to dismiss the writ of error, on the ground that the sum in controversy is less than $500, which, it is alleged, was the minimum amount of which this court had jurisdiction at the date of the judgment.

The judgment was rendered December 8, 1903, at which date the debt amounted to about $400. Two days thereafter, on December 10, 1903, by act of the General Assembly which took effect from its passage, the jurisdiction of the court was enlarged so as to include cases in which the matter in controversy amounted to $300, exclusive of costs. The circuit court adjourned for the term on December 19, 1903. The question to be determined, therefore, is, whether sec-tion 3455 of the Code of 1904 (fixing the jurisdictional amount of this court at $500, which was in force on December 8, 1903, when the judgment was rendered), or that section as amended (reducing the minimum jurisdictional sum to $500, which became effective on December 10, 1903, two days after the judgment was rendered, but nine days before the court adjourned), is to govern the right of appeal in this instance.

The amended statute (Acts 1902-04, p. 590, c. 373; section 3455, p. 1837, Va. Code 1904) provides that "no petition shall be presented for an appeal from, or writ of error or supersedeas to, any final judgment, decree or order * * * which shall have been rendered more than one year before the petition is presented, * * * nor to a judgment, decree, or order of any court where the controversy is for a matter less in value or amount than $300, exclusive of costs."

The act, it will be observed, deals with writs of error to final judgments, and by the rule of the common law no judgment becomes final until the end of the term at which it is rendered.

The rule is thus stated in the case of Baker v. Swineford, 97 Va. 112, 33 S. E. 542: "At common law, no judgment became final until the end of the term at which it was rendered, regardless of the duration of the term; and, until final, no court could direct an execution to issue on it. Section 3600 of the Code, however, confers on courts authority to direct executions to issue on judgments under the conditions therein set forth, but such judgments do not thereby become final so as to deprive the court, during the term, of the power to correct, or if need be, annul them if erroneous."

It is true that for certain purposes a judgment takes effect from its date; e. g., it constitutes a lien on the real estate of the judgment debtor from that time (Va. Code 1904, § 3567); and with respect to the limitation on appeals, this court, in accordance with the language of the statute, has held that time is to be computed from the date at which the judgment was rendered. Buford v. North Roanoke Land Co., 94 Va. 616, 27 S. E. 509.

But a different principle obtains in determining the right of appeal. During the term of the court at which the judgment is rendered, the trial court is clothed with exclusive jurisdiction over it, and may, in its discretion, modify, amend, or annul the same; and the jurisdiction of this court does not attach until after that jurisdiction of the trial court has terminated.

The...