Cross v. Sundin, 800412
| Decision Date | 12 June 1981 |
| Docket Number | No. 800412,800412 |
| Citation | 278 S.E.2d 805,222 Va. 37 |
| Parties | Walter D. CROSS v. Sandra Rhea SUNDIN, et al. Record |
| Court | Virginia Supreme Court |
Walter D. Cross filed brief pro se.
Henry P. Custis, Jr., Ayres, Hartnett & Custis, Accomac, on brief, for appellees.
Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.
The sole issue in this appeal is whether the trial court erred in dismissing an action filed by the appellant, a convict, on the ground that he could not proceed with the action without the appointment of a committee pursuant to Code § 53-307. 1
Subsequent to his conviction and incarceration for second-degree murder, Walter D. Cross brought an action in 1979 against Sandra Rhea Sundin and Martha Peppler, individually and in their capacity as executrices of the Estate of Marcia Lane Cross. 2 Alleging that Code § 53-307 deprived Cross of standing to maintain the action, the appellees filed a motion to dismiss, which the circuit court sustained in an order filed on December 18, 1979. Cross, contending he had a constitutional right to petition the courts without the appointment of a committee, then brought this appeal.
Because we believe this case is governed by Dunn v. Terry, Administratrix, 216 Va. 234, 217 S.E.2d 849 (1975), we find it unnecessary to reach the appellant's constitutional challenge. In Dunn, Charles R. Dunn, III, a prisoner, was sued by an administratrix prior to his incarceration. Although Dunn was represented by counsel in the civil proceedings, the trial occurred during his incarceration, and no committee was appointed for him. After the trial court rendered judgment against him, Dunn claimed that the failure to appoint a committee invalidated the civil judgment rendered against him. Rejecting his argument, we ruled that the appointment of a committee was a procedural provision which could be waived by a prisoner. In support of our holding, we noted that "(c)onvicts are not civilly dead in Virginia" and that Dunn "was not legally incompetent to transact business either before or after his conviction in the criminal case." Id. at 239, 217 S.E.2d at 854. Because Dunn elected to utilize the services of his attorneys and did not move for the appointment of a committee, we concluded that Dunn had waived the procedural provisions of Code § 53-307. Id.
Cross was free to waive the appointment of a committee, if he so desired. Consequently, the trial court erred in dismissing Cross's action on the basis of Code § 53-307.
For the reasons stated, the judgment of the trial court will be reversed and the case remanded for proceedings not...
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Al-Mustafa Irshad v. Spann
...inmate may proceed in state court either with or without the appointment of a committee. See Va.Code § 53.1-222 (1982); Cross v. Sundin, 222 Va. 37, 278 S.E.2d 805 (1981). The only impediment to Irshad's recovery in state court is the doctrine of sovereign immunity.3 See Crotts v. Bolling, ......
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Craigo v. Marshall, s. 16613
...he may waive their protection by electing to sue without the benefit of a committee. Matter of Bishop, supra; Cross v. Sundin, 222 Va. 37, 278 S.E.2d 805 (1981). In Virginia, the same rationale applies when he is sued. If he does not raise the right to have a committee appointed, it is waiv......
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Groves v. Cox
...§ 81-8,209 et seq. (1976). 2 As defendants note, a prisoner is free to waive the appointment of a committee, Cross v. Sundin, 222 Va. 37, 278 S.E.2d 805 (1981), and may proceed with an action without such appointment. Further, Section 14.1-183, Code of Virginia (1950), allows indigent priso......
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Frazier v. Collins, Civ. A. No. 81-1091-R.
...waive the appointment of the committee to which Va.Code § 53-307 refers, and proceed in state court without committee. Cross v. Sundlin, 222 Va. 37, 278 S.E.2d 805 (1981). See Graham, Whether the Peery court viewed the mechanism of committee appointment as an aid to indigent prisoners, and ......