Brooks v. Epperson

• Decision Date: 14 March 1935
• Citation: 164 Va. 37
• Court: Virginia Supreme Court
• Parties: O. B. BROOKS AND R. R. DAVIS, ETC. v. J. T. EPPERSON, ET AL.

Page 37

164 Va. 37

O. B. BROOKS AND R. R. DAVIS, ETC. v. J. T. EPPERSON, ET AL.

Supreme Court of Virginia, Richmond.

March 14, 1935.

Present, All the Justices.

1. APPEAL AND ERROR — Appeal from Municipal Civil Court of Lynchburg to Circuit Court — Appeal Bond — Case at Bar. — The instant case was an appeal from the Municipal Civil Court of Lynchburg to the circuit court of the city. There was an appeal by defendant from a judgment for plaintiffs. Appellants filed an appeal bond and deposited a certified check as surety on the appeal bond. Plaintiffs asked that the appeal be dismissed because the appeal bond did not comply with the statute, in that the statute provides that the appeal bond must be with surety, and that a certified check was not surety within the meaning of the statute.

Held: That the appeal should have been dismissed.

2. APPEAL AND ERROR — Right of Appeal Is Statutory — Statutory Prerequisites Must Be Observed. — The right of appeal is statutory and the statutory procedural prerequisites must be observed.

3. APPEAL AND ERROR — Appeal Bond — Approved Surety. — Bonds given on appeal to the Supreme Court of Appeals must be with approved surety.

4. APPEAL AND ERROR — Appeal Bond — Civil Appeals from Police Justices. — Under the Virginia statutes in civil appeals from civil and police justices, the appeal bond must be with surety.

5. APPEAL AND ERROR — Appeal Bond — Cash Deposit. — In the absence of express statutory authority, a judicial or other officer empowered to admit to bail persons accused of crime has no right to accept a deposit of money in lieu of bail or as a substitute for a recognizance.

6. APPEAL AND ERROR — Appeal Bond — Substantial Compliance with Requirements. — It is perfectly true that a substantial compliance with statutory requirements is all that is necessary. But in Virginia, by legislative construction, it has been held that a deposit of cash is not a substantial compliance and that the legislature must be looked to for power to accept such a deposit.

7. APPEAL AND ERROR — Appeal Bond — Compliance with Statute. — Where the circuit court should have dismissed an appeal from the Municipal Civil Court of Lynchburg because the appeal bond did not comply with the statute, it is not necessary to consider other assignments of error.

Error to a judgment of the Circuit Court of the city of Lynchburg. Judgment for plaintiffs. Defendant assigns error.

The opinion states the case.

Hester & Hester, for the plaintiffs in error.

Edmunds & Hamner, for the defendant in error.

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

The Epperson Lumber Company was the owner of a tract of timber land in Charlotte county, which it had purchased from T. D. Dillon. Brooks and Davis owned and operated a sawmill. By contract under seal of date April 19, 1928, they agreed to move their mill upon this Dillon tract and to cut, log, saw and stack all of the standing timber upon it for a stipulated price. Afterward these sawmill men, by verbal contract, agreed to saw for this lumber company timber on an adjoining tract which it owned, known as the Thornton tract. Work was completed in the early part of March, 1929. A dispute arose as to payment which it was claimed should have been made for a balance due on account of work done. Action was brought in the Municipal Civil Court of the city of Lynchburg, which, in due course, came on to be heard, and on December 11, 1933, the plaintiffs, Brooks and Davis, recovered a judgment against the Epperson Lumber Company for $502.20 with interest from January 1, 1930, and costs, $4.50. An appeal was taken by the defendant to the Circuit Court of the city of Lynchburg. This appeal bond was given:

"Know all men by these presents, that we, Jas. T. Carter and J. T. Epperson trading as Epperson Lumber Company principal certified check surety are held and firmly bound unto the Commonwealth of Virginia in the sum of six hundred and fifty dollars to the payment of which we bind ourselves, our heirs and personal representatives, jointly and severally firmly by these presents, witness our hands and seals this 21st day December, 1933. We hereby waive our homestead exemptions, as to this obligation. The condition of the above obligation is such that whereas the judge of the Municipal Court of the city of Lynchburg, Virginia, did on the 11th day of December, 1933, in a certain proceeding pending before said judge of Municipal Court between O. B. Brooks and R. R. Davis trading as Brooks and Davis plaintiff and Jas. T. Carter and J. T. Epperson partners traded as Epperson Lumber Company, defendant, enter a judgment for the plaintiff against the said defendant for the principal sum of $502.20 with interest from January 1, 1930, and $4.50 costs and whereas the said defendant has prayed an appeal from said judgment to the Circuit Court of the city of Lynchburg, now, therefore, if the said defendant shall abide the judgment of the said court upon said appeal, if perfected, of Municipal Civil Court aforesaid, then this obligation shall be void, otherwise to remain in full force and virtue."

Copy of certified check which was deposited as surety on the appeal bond:

"LYNCHBURG, VA. 12/21, 1933.

"Pay to the order of Joseph V. Gorman $650.00 six hundred and fifty and no/100 dollars.

"To the Lynchburg National Bank and Trust Company, Lynchburg, Va.

"EPPERSON LUMBER CO.

"JAS. T. CARTER."

This bond, thus secured, was accepted and approved by J. V. Gorman, judge of the said municipal court on December 21, 1933.

1, 2 When the case was called for trial and before a jury had been sworn, Brooks and Davis asked that the appeal be dismissed becuase the appeal bond did not comply with the statute for such cases made and provided. That motion the circuit court overruled. The case was then tried and resulted in a verdict and judgment for the defendant lumber company.

To the action of the circuit court in refusing to sustain this motion to dismiss exception was duly taken and is carried into bill of exception No. 1.

The right of appeal is statutory and the statutory procedural prerequisities must be observed. Richardson Shank, 155 Va. 240, 154 S.E. 542.

The charter of the city of Lynchburg, in providing for appeals from judgments of the municipal civil court, section 32, declares that "The provisions of the State law with reference to appeals and removals applicable to civil and police justices and judges of municipal courts of cities shall apply to said court."

Chapter 124 of the Code of 1919, as amended, deals comprehensively with civil and police justices and civil justices. Provisions for appeal there appear as Code 1919, section 3106, as amended by Acts 1924, chapter 437. It declares that "no appeal shall be granted unless and until the party applying for the same has given bond with sufficient surety to be approved by the said civil and police justice, to abide the judgment of the court upon the appeal, * * *. No surety in any such appeal bond shall be released by the appellant's being adjudicated a bankrupt at any time subsequent to the judgment rendered by the said civil and police justice, but such surety shall be entitled to make any defense on the trial of the appeal that the appellant could have made except the defense of bankruptcy."

Provision is also made for appeal in misdemeanor cases, such as is "now or hereafter provided by law for appeals from the judgment of a justice of the peace for the counties."

Chapter 192 of the Code of 1919, as amended, deals with arrest, commitment and bail. Code 1930, section 4829-a declares: "All police justices, justices of juvenile and domestic relations courts and civil and police justices, whether elected or appointed under the general law or city charter, and the clerk of the police court of any city in the State having a population of one hundred thousand inhabitants or more by the last United States census, shall have the power and jurisdiction within their respective cities or counties to admit to bail, upon recognizance with surety, persons charged with crime in all cases," etc.

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