Brooks v. Epperson Et At

• Decision Date: 14 March 1935
• Citation: 178 S.E. 787
• Parties: BROOKS et al. v. EPPERSON et at.
• Court: Virginia Supreme Court

178 S.E. 787

BROOKS et al.

v.EPPERSON et at.

Supreme Court of Appeals of Virginia.

March 14, 1935.

HUDGINS and BROWNING, JJ., dissenting.

Error to Circuit Court of City of Lynchburg.

Action by O. B. Brooks and R. R. Davis, etc., against J. T. Epperson and others in the Municipal Civil Court of Lynchburg. Judgment for plaintiff against the Epperson Lumber Company, and it appealed to the Circuit Court of the city of Lynchburg. Judgment for defendants, and plaintiffs bring error. Reversed.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.

Hester & Hester, of Lynchburg, for plaintiffs in error.

S. G. Hamner, of Lynchburg, for defendants in error.

HOLT, Justice.

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 & J. T. Epperson trading as Epperson Lumber Co. 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 21 day Dec., 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 11 day of Dec., 1933, in a certain proceeding pending before said Judge of Municipal Court between O. B. Brooks & R. R. Davis trading as Brooks & Davis plaintiff and Jas. T. Carter & J. T. Epperson partners trd. as Epperson Lumber Co., defendant, enter a judgment for the plaintiff against the said defendant for the principal sum of $502.20 with interest from Jan. 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 & Trust Co. 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.

When the case was called for trial and before a jury had been sworn, Brooks and Davis asked that the appeal be dismissed because 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 prerequisites must be observed. Richardson v. 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, § 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, § 3106, as amended by Acts 1924, c. 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, § 4829a declares: "All police justices, justices of juvenile and domestic relations courts and civil and police justices, whether elected or appointed under 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.

General provisions governing criminal procedure appear in the Code of 1919 as chapter 198 (as amended). In it Code, § 4973, amended by Acts 1926, c. 327, tells us that a recognizance, "if it be to answer for a misdemeanor or if required of a witness it shall be with or without security as the court or officer may direct; but in all other cases shall be with security deemed sufficient by the court or officer taking it"

Chapter 250 of the Code of 1919 (as amended) treats of justices of the peace, their jurisdiction, and warrants for small claims. In it Code 1919, § 6027, as amended by Acts 1924, c. 437, makes these provisions for appeal:

"From any such judgment the justice rendering it may, within ten days, on such security being given as he approves for the payment of such judgment as may be rendered on appeal by the appellate court against the defendant and all costs and damages, allow an appeal; * * * provided, however, that no surety in any appeal bond given by the appellant shall be released

* * * but such surety shall be entitled to make any defense on the trial of the appeal that the appellant could have...