Dudley v. Florence Drug Corp., 5605
| Decision Date | 11 September 1963 |
| Docket Number | No. 5605,5605 |
| Court | Virginia Supreme Court |
| Parties | PENNY VALERIE DUDLEY, AN INFANT, ETC. v. FLORENCE DRUG CORPORATION. Record |
Joseph Teck and Paul M. Lipkin (Goldblatt & Lipkin, on brief), for the plaintiff in error.
Peter W. Rowe (Harry E. McCoy; Seawell, McCoy, Winston & Dalton, on brief), for the defendant in error.
JUDGE: I'ANSON
Penny Valerie Dudley, an infant, plaintiff herein, brought this action by her next friend to recover damages for injuries suffered when she fell through a broken glass door while entering the store of the Florence Drug Corporation, the defendant herein. The case was tried by a jury, and at the conclusion of all the evidence presented on behalf of the plaintiff the trial court sustained a motion to strike the evidence and entered summary judgment for the defendant. From this judgment we granted plaintiff a writ of error.
The defendant has moved to dismiss the writ of error upon the ground that the transcript of the evidence and other incidents of trial in the court below was not tendered to the trial judge within 60 days after final judgment, pursuant to Rule 5:1, § 3(e) and (f), Rules of Court.
Final judgment in this case was entered by the trial court on June 25, 1962. On July 25, 1962, plaintiff filed with the clerk of the trial court her notice of appeal and assignments of error.
On August 27, 1962, counsel for defendant accepted service of a notice that the transcript of the evidence and other incidents of trial would be presented to the trial court for certification on August 28, 1962. This notice was dated August 23, 1962, which was the date plaintiff's counsel gave notice by letter of his intention to present the transcript to the trial court.
The transcript was never presented to counsel for defendant for his signature and was not signed at the end by counsel for all parties. The certificate appended thereto read that it was tendered and signed within 60 days from the entry of final judgment, but it appears that the trial judge changed the language to read that it was 'tendered and signed [by him] within 70 days' after final judgment and he signed the certificate as amended on August 30, 1962. (Emphasis added.)
Rule 5:1, § 3(e), provides in part:
'Oral testimony and other incidents of the trial * * * become part of the record when delivered to the clerk, if the transcript or statement is signed at the end by counsel for all parties and tendered to the judge within 60 days and signed by the judge within 70 days after final judgment. * * *' (Emphasis added.)
The relevant part of sub-section (f) of Rule 5:1, § 3, provides:
(Emphasis added.)
Thus, in plain, simple and concise language the above Rule of Court provides that in order to make the evidence and other incidents of trial a part of the record for purposes of an appeal to this Court, whether or not the transcript is signed by counsel for all parties it must be tendered to the trial judge within 60 days and signed by him within 70 days after the entry of final judgment, and the trial judge shall note thereon the date it was tendered to him and the date he signed it.
Counsel for plaintiff argues that the trial judge's certification that the transcript was tendered to him and signed by him within 70 days after final judgment is in compliance with Rule 5:1, § 3(e) and (f). We do not agree with his contention.
Under the express language of Rule 5:1, § 3(f), the trial judge is required to note on...
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Smith v. Commonwealth Of Va.
...that failure to file an indispensable transcript will result in the dismissal of an appeal. In Dudley v. Florence Drug Corporation, 204 Va. 533, 535, 132 S.E.2d 465, 466-67 (1963), the appellant tendered the transcript to the trial court six days after the sixty-day deadline set forth in Ru......
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Smith v. Commonwealth of Va..
...an indispensable transcript is consistent with precedent of this Court and the Court of Appeals. See e.g., Dudley v. Florence Drug Corp., 204 Va. 533, 535, 132 S.E.2d 465, 467 (1963); Smith v. Commonwealth, 32 Va.App. 766, 772, 531 S.E.2d 11, 14–15 (2000). We agree with Smith that if an app......
- Wright v. Orlowski, 760892
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Fearon v. Com.
...the judgment of the trial court. Hyman v. Commonwealth, Supra, 206 Va. at 892, 147 S.E.2d at 157; Dudley v. Florence Drug Corporation, 204 Va. 533, 535, 132 S.E.2d 465, 467 (1963). Writ ...