Condrey v. Childress
| Decision Date | 31 August 1962 |
| Docket Number | No. 5470,5470 |
| Citation | 127 S.E.2d 150,203 Va. 755 |
| Parties | BAILEY L. CONDREY, ATTORNEY IN FACT FOR THE HEIRS AT LAW OF J. S. CHILDRESS, DECEASED v. FLOYD S. CHILDRESS AND FLOYD S. CHILDRESS, JR. Record |
| Court | Virginia Supreme Court |
Kenneth I. Devore and Jay A. Price, for the plaintiff in error.
Arthur E. Smith; Evans B. Jessee; Carrol D. Rea; W. S. Roop; Allen Sowder, for the defendants in error.
Floyd S. Childress and Floyd S. Childress, Jr., appellees, have moved to dismiss the writ of error granted in this case upon the ground that the record therein was not delivered to the Clerk of this Court at Richmond or Staunton or presented to a Justice within four months from the date of the final judgment of the trial court. Code of Virginia, 1950, § 8-489; Rule of Court 5:4.
Final judgment in this case, an action of unlawful detainer, was entered by the trial court on July 10, 1961. Within sixty days thereafter, on September 6, 1961, appellant filed with the clerk of the trial court his notice of appeal and assignments of error. Rule of Court 5:1, § 4. A transcript of the evidence was duly certified by the trial court and delivered to the clerk. Rule of Court 5:1, § 3(f), (e).
On October 17, twenty-four days before the expiration of four months after date of the final judgment, appellant filed with the clerk of the trial court his designation of the parts of the record that he wished to be printed. Attached to the designation was a notice to the clerk to transmit the record to the Clerk of this Court, 'as provided by law.'
On November 10, 1961, the last day of the four months period following the date of final judgment, appellant filed with the Clerk of this Court his petition for a writ of error. On November 27, 1961, four months seventeen days after the entry of final judgment, the record was received by the Clerk of this Court. Prior thereto, on November 21, 1961, appellees filed a brief in opposition to the granting of a writ of error, in which no mention was made of any delay in the transmission of the record.
We granted writ of error on February 28, 1962. The motion to dismiss the writ was made on March 13, 1962.
Section 8-463 of the Code of 1950, requires the petition for appeal to be presented within four months of final judgment, and § 8-489, so far as material here, provides that:
'No process shall issue upon an appeal, writ of error, or supersedeas allowed to or from a final judgment, decree or order of any court * * *, if, when the record with the petition required by law is delivered to the clerk of the Supreme Court of Appeals, there shall have elapsed four months since the date of such final judgment, decree, order or finding, * * *.
'The appeal, writ of error or supersedeas shall be dismissed whenever it appears that four months, * * * has elapsed since the date of such final judgment, decree, order, finding or award, before the record with such petition, is delivered to such clerk, * * *.' (Emphasis added.)
Rule of Court 5:1, § 7 provides:
Rule of Court 5:4 provides that: * * *.' (Emphasis added.)
Thus, in clear, simple and concise language it is provided that the record, together with the petition for appeal, must be physically in the Clerk's Office of this Court, or in the hands of a Justice, within four months next following the day on which the judgment appealed from was entered. The...
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Farrell v. Warren Cnty. Dep't of Soc. Servs.
...of justice.’ ” Mayo v. Dep't of Commerce, 4 Va.App. 520, 522, 358 S.E.2d 759, 761 (1987) (quoting Condrey v. Childress, 203 Va. 755, 757, 127 S.E.2d 150, 152 (1962)). Because the record indicates that father failed to timely note an appeal of the trial court's order denying the motion to va......
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Farrell v. Warren Cnty. Dep't of Soc. Servs.
...administration of justice.'" Mayo v. Dep't of Commerce, 4 Va. App. 520, 522, 358 S.E.2d 759, 761 (1987) (quoting Condrey v. Childress, 203 Va. 755, 757, 127 S.E.2d 150, 152 (1962)). Because the record indicates that father failed to timely note an appeal of the trial court's order denying t......
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Farrell v. Warren Cnty. Dep't of Soc. Servs.
...of justice.'" Mayo v. Dep't of Commerce, 4 Va. App. 520, 522, 358 S.E.2d 759, 761 (1987) (quoting Condrey v. Childress, 203 Va. 755, 757, 127 S.E.2d 150, 152 (1962)). Because the record indicates that father failed to timely note an appeal of the trial court's order denying the motion to va......
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National Capital Naturists, Inc. v. Board of Sup'rs of Accomack County, Va.
...appeal, despite their failure to perfect it in a timely manner. However, the rule of timeliness here is mandatory. Condrey v. Childress, 203 Va. 755, 127 S.E.2d 150 (1962). Petitions for appeal must be filed within four months of final judgment; appellants were twenty days late. Although th......