Craddock's Adm'R v. Craddock's Adm'R

• Decision Date: 24 March 1932
• Court: Virginia Supreme Court
• Parties: CHARLES R. CRADDOCK'S ADMINISTRATOR v. BLANCHE R. CRADDOCK'S ADMINISTRATOR.

Page 58

158 Va. 58

CHARLES R. CRADDOCK'S ADMINISTRATOR v. BLANCHE R. CRADDOCK'S ADMINISTRATOR.

Supreme Court of Virginia, Richmond.

March 24, 1932.

Present, Campbell, C.J., and Holt, Epes, Gregory and Chinn, JJ.

1. ABATEMENT, REVIVAL AND SURVIVAL — Suit for Divorce — Death of Both Parties — Revival by Administrators of Husband — Case at Bar. — A decree for a divorce a vinculo was rendered in favor of a husband against his wife, which carried with it, as a legal incident of the divorce, the extinguishment of the wife's marital rights in the husband's property. This decree was vacated and set aside by a decree entered upon a bill of review filed by the wife for error apparent on the face of the record. Before the time for an appeal from the second decree expired, both husband and wife died.

Held: That the suit did not so completely abate with the death of the husband and wife as to render an appeal from the second decree, in so far as it affected the property rights of the parties, unavailable to the heirs, devisees, or personal representative of the husband. Therefore, the husband's administrators could have the cause revived in their names and prosecute an appeal, notwithstanding the death of both parties. The same rule is applicable where death occurs before petition for appeal is filed.

2. ABATEMENT, REVIVAL AND SURVIVAL — Suit for Divorce — Death of Both Parties — Revival by Administrators of Husband — Appeal from Bill of Review Setting Aside Divorce Decree — Case at Bar. — Where the decree in the original suit granted a husband a divorce and the appeal is from a decree, entered upon a bill of review, setting aside the divorce decree, the rule that the heirs, devisees, or personal representative, or other person having an interest in the deceased husband's property, which is affected by setting aside the decree of divorce, may have the cause revived and prosecute the appeal, notwithstanding the death of both parties, is applicable.

3. APPEAL AND ERROR — Chancery Cases — Trial de Novo. — An appeal in a chancery cause brings up the whole case for determination de novo upon the record (the whole record) made in the trial court, but under the Virginia statutes permits the consideration of nothing extraneous the record, and under the rules of the Supreme Court of Appeals the issues which will be determined on an appeal are generally limited to those raised in the assignments of error made.

4. APPEAL AND ERROR — Chancery Cases — Trial de Novo — Questions not Raised in the Trial Court. — The determination de novo on an appeal in a chancery cause is subject to certain statutory provisions and rules of the common law which operate to prevent consideration on appeal of certain questions which were not raised in the trial court.

5. APPEAL AND ERROR — Chancery Cases — Weight Given to Determination of Chancellor. — In determining issues of fact on a trial de novo on appeal of a chancery cause the judgment of the chancellor on the trial in the lower court is given much persuasive force.

6. APPEAL AND ERROR — Writ of Error and Appeal Distinguished. — The Virginia statutes and cases from the earliest times have preserved the distinction between a writ of error in a common law cause and an appeal in a chancery cause. There is a difference in the principles controlling the two proceedings.

7. APPEAL AND ERROR — Bill of Review — Record. — The record in a chancery cause is the same thing whether it is to be examined on a bill of review or on an appeal.

8. APPEAL AND ERROR — Record — What Constitutes a Record. — A record includes the pleadings and exhibits filed therewith, the depositions, documents introduced in evidence, commissioner's reports and papers filed as a part thereof, or returned therewith as shown by the reports, the exceptions thereto, stipulations of the parties, and the decrees entered; and also all processes and notices served and returned in connection with the proceedings had and the returns thereon, orders of publication and certificates showing the making of the publications ordered, and every other paper technically filed in the cause and/or considered by the court, or which any party sought to introduce as a part of the record which the decrees show were rejected by the court.

9. APPEAL AND ERROR — Record — Papers Filed in the Cause. — The papers of a case, when filed under a statute, become a part of the record as fully as if copied into the record book of the court, and transcripts of the record are made by copying the files and orders of the court as entered of record by the clerk.

10. APPEAL AND ERROR — Record — Parts not Required to be Certified up on Appeal. — It is commonly provided by statute or rule of court that certain parts of the record need not be copied and certified up on appeal (sections 6340 and 6342, Code Va. 1919); but such statutes or rules of court do not have the effect of excluding the things mentioned from the record. They only relieve the necessity of copying them into the transcript of the record, unless they are material to the issue raised on appeal.

11. APPEAL AND ERROR — Record — Parts not Required to be Certified up on Appeal — Certiorari. — If parts of the record not required by statute to be certified up on appeal are material to the issue, either party may have a certiorari to bring them up.

12. APPEAL AND ERROR — Record — Chancery Cause — Failure of Record to Show Affirmatively that Certain Steps were Taken. — Where, if the record in a chancery cause should affirmatively show that a certain step or proceeding was not had, it would constitute reversible error, generally the record must affirmatively show (either by a recital in the decree or by some written memorial which is a part of the record and competent to speak upon the subject), that such step was taken or proceeding had.

13. APPEAL AND ERROR — Record — Chancery Cause. — Generally speaking, nothing is done in a chancery cause which the record does not show to have been done.

14. APPEAL AND ERROR — Record — Presumption that Whole Record was Certified up — Case at Bar. — In the instant case the clerk certified that the record sent up constituted a true and exact copy of the record in the case. An examination of the record certified up shows that it does not contain the omissions authorized by sections 6339 and 6340 of the Code of 1919. There was no suggestion on appeal that it did not contain all the record that was made in the lower court; no application for a certiorari under section 6345 of the Code of 1919 has been made; and the whole case has been proceeded in by the parties upon the theory that the whole record made in the trial court in the original suit has been certified up. It is then conclusively to be presumed that the whole record was before the Supreme Court of Appeals.

15. DIVORCE — Ex Parte Proceedings — Provision that Bill Cannot be Taken for Confessed. — Where, as in a divorce suit, for reasons of public policy it is provided that the bill shall not be taken for confessed as against any party, a suit cannot be proceeded with ex parte as to that party whether the defendant has appeared or not, unless there is statutory authority therefor.

16. DEPOSITIONS — Notice of Taking Depositions — Defendant in Divorce Case Who has Not Appeared. — A defendant in a divorce suit is entitled to notice of the taking of depositions, regardless of the fact that she had not and did not appear in the suit.

17. APPEARANCES — Waiver of Objections to Matters of Procedure — Rule Inapplicable where there is No Appearance. — A defendant who appears and defends a suit upon the merits waives all objections to matters of procedure to which he has not theretofore made or does not then make objection, and therefore, under such circumstances he cannot raise objections to the proceedings for the first time upon a bill of review or appeal. But this rule has no application where there has been no appearance. In such a case there is nothing upon which to base a waiver.

18. DIVORCE — Testimony Ore Tenus — Notice of Introduction. — While section 5109 of the Code of 1919, which permits the taking of testimony ore tenus in a divorce suit, does not specifically require notice to the defendant that testimony will be introduced ore tenus, the plain intendment of the statute is that notice shall be given; and where under this statute testimony is introduced ore tenus the party against whom it is introduced is entitled to the same notice to which he or she would have been entitled if the testimony had been introduced by depositions.

19. DIVORCE — Notice of Depositions or of the Taking of Testimony Ore Tenus — Record Showing that Notice had not been Given — Case at Bar. — In the instant case the trial court was clearly right in holding that the record on its face showed that notice had not been given either of the taking of a deposition or of the introduction of testimony ore tenus; and that this constituted reversible error of law appearing on the face of the record. The record did not show on its face that notice had been given the defendant of the taking of depositions or of the introduction of testimony ore tenus before the court; nor was there any recital of fact or circumstance from which it might be inferred that any such notice was given. It therefore appeared on the face of the record that no such notice was given.

20. BILL OF REVIEW — Evidence to Support Decree. — Even upon a bill of review the evidence in the cause may be reviewed to ascertain whether there is any evidence in the cause upon which the decree could be based.

Appeal from a decree of the Corporation Court of the city of Alexandria.

The opinion states the case.

Albert V. Bryan, for the appellant.

Charles Henry Smith and F. G. Duvall, for the appellee.

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

On January 10, 1930, Charles R. Craddock instituted in the Corporation Court for the city of Alexandria a suit for divorce against his wife,...