Avery v. County School Bd. of Brunswick County, 3779

• Citation: 192 Va. 329,64 S.E.2d 767
• Decision Date: 07 May 1951
• Docket Number: No. 3779,3779
• Court: Supreme Court of Virginia
• Parties: STEWART AVERY v. COUNTY SCHOOL BOARD OF BRUNSWICK COUNTY. Record

Page 767

64 S.E.2d 767

192 Va. 329

STEWART AVERY v. COUNTY SCHOOL BOARD OF BRUNSWICK COUNTY.

Record No. 3779.

Supreme Court of Appeals of Virginia

May 7, 1951.

B. A. Lewis and Thomas E. Warriner, Jr., for the appellant.

J. C. Hutcheson, for the appellee.

JUDGE: WHITTLE

WHITTLE, J., delivered the opinion of the court.

This case is before us on a motion of the County School Board of Brunswick County, Virginia, appellee, to dismiss the appeal granted Stewart Avery, appellant. The motion to dismiss is based upon the failure of counsel for appellant to comply with the rules of procedure which became effective, after much publicity, on February 1, 1950.

It is admitted by counsel for appellant that they failed to designate, within the time allowed by Rule 5:1, Sec. 6(a), the parts of the record they desired printed, and it is insisted by appellee that since this is one of the essential provisions of Rule 5:1, it cannot be treated as merely directory, but is mandatory.

In adopting the new rules, we had hoped that the procedure had been made so clear and simple that a litigant would never lose any rights because of his lawyer's failure to take the proper procedural steps to protect his interests. We realized, however, that the orderly administration of justice requires that certain rules must be obeyed, however technical they may seem to be. This is particularly true of important time limits. Whether an appeal must be perfected in four months or five months is, of course, a technicality. If there is to be any time limit, it must be specified; and if there were no time limit, the appellee would never know when his case was ended.

The following will illustrate what we have just said. Rules 2:10 and 3:6 removed the numerous pitfalls and snares that had surrounded the plea in abatement for centuries; but the plea must be filed within twenty-one days after the service of process or it cannot be filed at all. For example, in the past, many appeals were dismissed because of defects in the appeal bond, and Section 11 of Rule 5:1 removes that hazard so far as possible; but the bond must, of course, be given within the time allowed by statute.

This court has always exercised its discretion, so far as it legally could, to protect litigants against the consequences of the failure of a public officer to perform ministerial duties. Section 6339 of the Code of 1942 required the appellant to notify the appellee of his intention to apply for a transcript of the record on appeal; and required the clerk to certify that the notice had been given. In Brame v. Guarantee Finance Co., 139 Va. 394, 124 S.E. 477, the notice was actually given by the appellant, but the certificate was not made by the clerk; and the court refused to hold the appellant responsible for the fault of the clerk.

In Vick v. Siegel, 191 Va. 731, 62 S.E. (2d) 899, decided under the present rules, the court went a step further. Section 6(d) of Rule 5:1 requires the judgment appealed from, the trial court's opinion, if any, and the assignments of error to be designated for printing by the appellant, and Section 8 requires the clerk of this court to cause them to be printed. The appellant forgot to designate the assignments of error, and we held that the provision that they be designated is directory and the failure to designate is not sufficient ground for dismissing the appeal; this holding was based upon the reason that the clerk was required by this rule to have them printed whether designated or not.

The designation by counsel of a part of the record that must be printed whether designated or not is for the convenience of the clerk of this court in sending the transcript to the printer. Section 6(c) points out that the form of the designation is to be such that the clerk can hand it to the printer as his instructions to print, and counsel should not put on the clerk the burden of checking the designation. Instructing the printer to print the judgment appealed from, any memorandum of the judge and the assignments of error is a purely ministerial act; but designating the other parts of the record involves discretion that can be exercised only by the appellant.

Rule 5:1 is designed to make appellate procedure as simple and inexpensive as possible.

Section 3 of Rule 5:1 describes how papers and testimony become part of the record, and a simpler method could hardly be invented. All the ordinary court papers become part of the record when lodged with the clerk. Instructions and exhibits become part of the record when initialed by the judge. Oral testimony transcribed by a reporter becomes part of the record when signed by counsel and the judge and handed to the clerk within the prescribed time. Provision is made for the situation where appellee's lawyer refuses to sign the transcript, and paragraph (f) embodies the essential features of a bill of exceptions.

Since the appellant is given 60 days by Section 3 to present the transcribed oral evidence to the judge, he is given 60 days by Section 4 to file his notice of appeal.

Within the same 60 days he must file his assignments of error; and appellee has two weeks in which to file assignments of cross-error. The reason assignments of error must be filed when the time for perfecting the appeal has only half run, is because until they are filed, the parties cannot know what parts of the record will be material on the appeal. As soon as the assignments have been filed, both parties will know which issues are controverted and what parts of the evidence bear on those issues. For example, in a personal injury case, if the defendant does not assign as error that the verdict is excessive, there will be no need to print the medical testimony or the testimony dealing with the extent of the injury. Then, if the defendant should seek in this court to argue the question of the excessiveness of the verdict, the refusal of the court to entertain the argument would be not for the purpose of enforcing a technical rule but for the purpose of protecting the plaintiff against being taken unfairly by surprise.

Section 5 provides that 'After receiving the notice of appeal and appellant's assignments of error the clerk shall promptly make up the record . . .' Unless the notice of appeal and assignments of error are filed within the 60 days allowed, the clerk is under no duty and has no authority to make up the record. The purpose of the specific time limit is not to penalize the appellant but to protect the appellee. If the required papers are not filed in 60 days, the appellee is entitled to assume that the litigation is ended, and to act on that assumption. Litigation is a serious and harassing matter, and the right to know when it is ended is a valuable right.

The clerk is required to make up the record 'promptly' and no arbitrary time limit is fixed. The time spent by the clerk in making up the record is necessarily subtracted from the time allowed the appellant. Under the rules, the clerk needs much less time than he did before. All he has to do is to gather the papers together, put them in 'chronological order', number the pages and make an index.

Between the time when the record has been made up by the clerk of the trial court and the expiration of the four months within which the petition for appeal and the record must be transmitted to the clerk or one of the justices of this court, the appellant is required by Section 6 to designate the parts of the record to be printed. Before counsel can prepare a petition for appeal he necessarily must decide what points he intends to rely on and what parts of the record are germane to those points. When he has separated the wheat from the chaff by designating the material parts of the record, he has done not only what the rule requires, but also what is necessary in writing his petition. At the same time he thereby defines the issues so that...