Bolin v. Laderberg
| Decision Date | 06 March 1967 |
| Citation | 207 Va. 795,153 S.E.2d 251 |
| Parties | , 30 A.L.R.3d 990 Sandy BOLIN et al. v. Edith LADERBERG et al. |
| Court | Virginia Supreme Court |
W. P. McBain, Norfolk, for appellants.
Louis B. Fine, Norfolk (Morris H. Fine, Andrew S. Fine, Fine, Fine, Legum, Schwan & Fine, Norfolk, on brief), for appellees.
Before EGGLESTON C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.
On July 16, 1965, Edith Laderberg and Sol Laderberg filed a bill of complaint against Sandy Bolin and Estelle Gilmore Bolin seeking the construction of a lease dated October 1, 1955, wherein the Laderbergs were lessees and the Bolins were lessors. The bill alleged that the lease would expire on September 30, 1965, and prayed for a determination that the lessees were entitled to remove from the leased premises 'certain movable fixtures' placed thereon by the lessees. The bill also prayed that the lessors be enjoined and restrained from preventing such removal.
The cause was referred to a commissioner in chancery who, on September 2, 1965, heard the testimony of the witnesses. Since the expiration date of the lease was near, the commissioner, at the request of the parties, made his report to the court before the testimony was written up by the court reporter.
In his report filed September 15, 1965, the commissioner recommended that the lessees be permitted to remove from the premises six air conditioning units, a gas heater, and an electric sign, but that they not be permitted to remove two water towers located on the roof of the building and used to cool water for the air conditioning system.
Both parties filed exceptions to the commissioner's report, which were overruled by the trial court. A final decree was entered confirming and approving the report and carrying out the commissioner's recommendations. The lessors were granted this appeal.
At the threshold, we are met with a challenge to the jurisdiction of this court in the form of a motion to dismiss the appeal, filed by the lessees. They say that the lessors violated Rule 5:1, § 3(f) 1 by failing to give the lessees' counsel reasonable written notice of the time and place of tendering the transcript of the proceedings before the commissioner in chancery and a reasonable opportunity to examine the transcript.
The final decree was entered on September 28, 1965. On November 24, the 57th day after entry of the decree, counsel for the lessors hand-delivered to counsel for the lessees written notice that the transcript would be tendered to the trial judge at 9:30 a.m. on November 26. The transcript was certified by the commissioner in chancery on November 25. It was tendered to the judge on November 26, signed by him on December 3, and marked 'Filed' by the clerk on the latter date.
The motion to dismiss may be overruled summarily by referring to Rule 5:1, § 3(f) itself. It is true that the rule requires that counsel tendering a transcript 'shall give opposing counsel reasonable written notice of the time and place of tendering it and a reasonable opportunity to examine the original or a true copy of it.' But another portion of the rule provides that '(t)he signature of the judge, without more, will be deemed to be his certification that counsel had the required notice and opportunity, and that the transcript * * * is authentic.'
Here, the trial judge noted on the transcript the date it was tendered to him and the date he signed it. His signature appears on the transcript Without more and is, therefore, his certification that counsel for the lessees had the required notice of tendering the transcript and the required opportunity to examine it.
There is, however, another important reason to overrule the motion to dismiss; and that is that the certification of the transcript by the trial judge was not required.
The testimony in the transcript was taken before the commissioner in chancery, and not in a trial or hearing before the court, as contemplated by Rule 5:1, § 3(e), 2 upon which the operation of Rule 5:1, § 3(f) is dependent. The testimony in the transcript was nothing more than the depositions of the witnesses appearing before the commissioner. He certified the transcript to the trial court, describing it as 'Depositions of witnesses taken before' him.
Under Rule 5:1, § 3(a) depositions 'become part of the record when they are lodged with the clerk.'
The certification of the transcript by the commissioner in chancery attested to the authenticity of the depositions contained therein, and the lodging thereof with the clerk made such depositions part of the record. There was no necessity, therefore, for the trial judge, who had not heard the testimony and was not in a position to vouch for its accuracy, to certify the transcript.
Such is the way testimony taken before a commissioner in chancery has been considered and handled traditionally--a way unchanged by the present Rules of Court. In Ross Cutter & Silo Co. v. Rutherford, 157 Va. 674, 161 S.E. 898, the issue was whether a transcript of testimony heard Ore tenus by the court was required to be certified. In deciding that such certification was necessary, this court observed:
* * *' 157 Va., at p. 683, 161 S.E. at p. 901.
And in Armstrong v. Bryant, 189 Va. 760, 55 S.E.2d 5, the court had before it a motion to dismiss the appeal on the ground that a transcript of testimony heard Ore tenus by the trial court had not been tendered timely. In considering the motion, the court commented:
189 Va., at p. 764, 55 S.E.2d at p. 6.
With the motion to dismiss out of the way, we turn our attention to the merits of the appeal to determine whether the trial court erred in confirming the ruling of the commissioner in chancery that the lessees were entitled to remove the air conditioning units, gas heater, and electric sign.
The lease contained a provision reading as follows:
'* * * Tenant shall not make any alterations or additions without owner's written consent, endorsed on this lease, and all alterations, additions or improvements made by either of the parties thereto upon the premises, except moveable furniture put in at the expense of the tenant, shall be the property of the owner and shall remain upon and be surrendered with the premises at the termination of this lease.'
The parties also entered into a 'Supplemental Lease,' which stated that it was 'in derrogation of the original lease.' However, the only effect of the 'Supplemental Lease' upon the just-quoted provision of the original lease was to obviate the necessity of the lessors' approval of alterations or additions made by the lessees under specified conditions.
The record discloses that upon the leased premises was a large building in which the lessees conducted a retail furniture business. The lessees installed an air conditioning system in the building. Anchored into the roof were two water towers for cooling water for use in the system. Resting upon the floor inside the building were six convectors or air conditioning units, for distributing the cooled air. The convectors were connected to the towers by metal pipes placed in holes through the roof. The pipes supplied cooled water to the convectors and returned the used water to the towers. Electric cables, also placed in holes through the roof, supplied the current to operate the pumps which circulated the water. Metal ducts, running through partition walls,...
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