Armstrong v. Bryant

• Citation: 55 S.E.2d 5,189 Va. 760
• Parties: ARMSTRONG et al. v. BRYANT.
• Decision Date: 07 September 1949
• Court: Supreme Court of Virginia

55 S.E.2d 5

189 Va. 760

ARMSTRONG et al.

v.BRYANT.

Supreme Court of Appeals of Virginia.

Sept. 7, 1949.

Lillie Bryant sued Archie I,. Armstrong and others for specific performance of an oral contract to sell realty.

The Circuit Court of the City of Norfolk, Clyde H. Jacob, J., entered a decree for the plaintiff, and defendants appealed.

The Supreme Court of Appeals, Gregory, J., overruled a motion to dismiss the appeal and affirmed the judgment, holding that the evidence sustained the finding that a definite contract for the sale of realty existed between the parties and that plaintiff thereafter made extensive improvements so that it would be a fraud on plaintiff not to enforce the oral contract to convey the realty.

Before GREGORY, EGGLESTON, BUCHANAN, and STAPLES, JJ.

James G. Martin & Son, Robert D. Ruffin, Norfolk, for appellants.

Stanley E. Sacks, Herman A. Sacks, Norfolk, for appellee.

GREGORY, Justice.

At the outset the jurisdiction of this court is challenged by counsel for the appellee by a motion to dismiss the appeal. For that reason it is necessary to decide the motion and establish jurisdiction even though we affirm the decree.

Counsel contend that inasmuch as the decree was entered on July 28, 1948, and the evidence which was taken ore tenus and incorporated in a bill or certificate of exceptions was not tendered to the judge of the court until October 15, 1948, more than 60 days from the entry of the decree, the bill or certificate of exceptions cametoo late, thereby preventing this court from taking jurisdiction. We have not had the benefit of briefs on this subject.

An examination of the decree, which is the subject of this appeal, will disclose that it is not a final decree, but an interlocutory decree, adjudicating the principles of the cause. There are a number of important things to be cleared up which are mentioned in the decree, such as allowing credit for improvements and repairs to the property, taking care of certain valid liens on the property, and removing defects from the title. It developed that there was a deed of trust on the property to Ruffin, trustee, to secure $2,000. This sum was to be paid out of the purchase price. Finally, it was adjudged and ordered that the cause be referred to a commissioner in chancery to take an accounting, in which should be ascertained the aggregate amount of valid liens on the property and the amount or balance of the purchase price due, including interest, if any, on the deferred payments. Also the commissioner was directed to ascertain the amounts paid by the defendants for taxes and insurance on the property since the execution of the alleged contract.

The commissioner filed a report which embraces many subjects. Exceptions were filed to it, but to this day no action has been taken so far as the record discloses, upon either the report or the exceptions. There are several vital matters in controversy between the parties that are still open, among them the establishment of the amount, if any, due under the contract. From all of this it is apparent that the decree is not final.

Rawlings' Ex'r v. Rawlings, 75 Va. 76, at page 87, relied upon by appellees, is not controlling here. There an estate was involved and the court decided that the decree was final for these reasons: "Now it seems to me, this decree is final in every essential particular. It is the 'final settlement of the estate' which the court had in 'view' in its order of October, 1873. The whole estate is disposed of--there is nothing left. The relief contemplated by the court is completely given. No question is left undecided. No further action of the court 'in the cause' is necessary. If any further action of the court be necessary, it is not 'in, but beyond the cause' for the execution of the decree pronounced; and measures necessary to execute a decree which gives completely the relief contemplated by the court, do not alter or affect such decree as to its character of finality. A decree is not less final in its nature because measures may be necessary to compel parties to obey it. See Harvey and wife v. Branson, supra; Thorntons v. Fitzhugh, 4 Leigh 209; Fleming and others v. Boiling and others, 8 Gratt. 292."

It is obvious from the quotation that the decree in the present cause is clearly distinguishable.

Of course, interlocutory decrees are sometimes appealable. See Code, section 6336. Code, sections 6252 and 6253 (Michie, 1942), provide for bills of exceptions and certificates in lieu of bills of exceptions respectively. The bill or certificate may be tendered the trial judge any time "before final judgment is entered or within sixty days from the time at which such judgment is entered * * *." The quoted language appears in both statutes, and Rule 21 of this court declares that the rule shall not supersede the bills of excepttions or certificate but is intended as an alternative method of preparing records for review. The rule provides in express language, "such certificates shall be tendered to and signed by the trial court or judge thereof within the time prescribed by Code, section 6252, for tendering and signing bills of exception." The rule applies where there has been the trial "of any case, cause, or proceeding * * *", which, of course, includes a chancery cause. And this court has decided that Code, section 6253 is applicable to both actions at law and chancery causes. Ross Cutter & Silo Co. v. Rutherford, 157 Va. 674, at page 684, 161 S.E. 898.

Originally, all of the testimony in chancery causes was taken by depositions before an officer authorized to take them, and marked filed by the clerk. In such cases the certificate of the officer before whom the depositions were taken authenticated the matter contained therein andthe certificate of the clerk showing the filing thereof was sufficient to make them a part of the record. However, when a transcript of testimony which has been heard ore tenus is filed with the papers in the cause without having been authenticated by the judge, it does not become a part of the record.

The authority for hearing evidence ore tenus in a chancery cause is found in section 6228a of the Code (Michie, 1942). The statute was passed in 1930 and amended in 1932. It authorizes, under certain conditions, the hearing of testimony in all chancery causes ore tenus except those involving the sale of lands of infants and insane persons. Testimony may be taken ore tenus in divorce suits under the authority of section 5109 of the Code.

In preparing the record in a chancery cause for this court, where the decree to be appealed from is interlocutory, a transcript of the evidence taken ore tenus need not be tendered the judge for certification within 60 days from the entry of that decree. The statutes, sections 6252 and 6253, do not require it. The 60-day provision is applicable only to final decrees. Here the certificate was tendered the judge before final decree, and was in time.

We are therefore of the opinion that the motion to dismiss is out of order and should be overruled. See Ross Cutter & Silo Co. v. Rutherford, supra; Owen v. Owen, 157 Va. 580, 162 S.E. 46; Omohundro v. Palmer, 158 Va. 693, 164 S.E. 541, and Nethers v. Nethers, 160 Va. 335, 168 S.E. 428.

Lillie Bryant instituted a suit in equity against Archie L. Armstrong and Mary E. Armstrong, his wife, to require them to perform specifically a certain oral contract whereby it is alleged they agreed to sell the complainant certain real estate in the city of Norfolk, upon certain terms. The Armstrongs denied the contract of sale, and contended that it was only a rental contract. The court, after a hearing ore tenus entered a decree directing the specific execution of the agreement.

In the decree the court made certain specific findings. It found that on the 25th day of September, 1944, Armstrong and his wife entered into an agreement with Lillie Bryant to sell her their property, Number 417 Grigsby Place, Norfolk, Virginia, for the sum of $3,500, $150 of which was paid in cash and the balance was to be paid in semi-monthly installments of $20 each, plus taxes, insurance and interest. The court further found that pursuant to the said agreement Lillie Bryant was put in possession of said property; that she has made extensive...