Eagle Lodge, Inc. v. Hofmeyer, 3928

• Decision Date: 16 June 1952
• Docket Number: No. 3928,3928
• Citation: 71 S.E.2d 195,193 Va. 864
• Parties: EAGLE LODGE, INCORPORATED v. ARTHUR N. HOFMEYER. Record
• Court: Virginia Supreme Court

Page 195

71 S.E.2d 195

193 Va. 864

EAGLE LODGE, INCORPORATED v. ARTHUR N. HOFMEYER.

Record No. 3928.

Supreme Court of Appeals of Virginia

June 16, 1952.

D. Gardiner Tyler, Jr. and George E. Haw, for the appellant.

R. T. Armistead, for the appellee.

JUDGE: SPRATLEY

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

This proceeding was instituted on December 13, 1948, by Eagle Lodge, Incorporated, hereinafter referred to as the appellant, against Arthur N. Hofmeyer, seeking an injunction against the defendant, his agents and servants from traveling over, trespassing upon, or using all roadways of the land of the appellant, known as Cary's, except a direct outlet road leading from appellee's land to a road called the Poplar Ridge Route. A temporary injunction was granted upon the allegations of the bill and the oral testimony of appellant; but was dissolved at a hearing on December 20, 1948.

On February 15, 1949, appellee filed his answer setting up the following defense:

'That this respondent and his predecessors in title have used the existing right of way continuously and exclusively for a period of more than twenty years and that the use has been made under a claim of right with the knowledge and acquiescence of the owners of Cary's.

On February 16, 1949, appellee asked for an issue out of chancery, based on the defense set up in his answer. Judge Frank Armistead, presiding as chancellor, granted his request on January 21, 1950. On April 28, 1950, Judge Armistead disqualified himself from further hearing the case, and Judge Brockenbrough Lamb was designated in his place and stead. At a pretrial conference on May 31, 1950, Judge Lamb vacated the decree of January 21, 1950, awarding an issue out of chancery, and ordered that the cause be set for hearing ore tenus before the court, without a jury, on September 25, 1950.

Thereafter, on September 7, 1950, the appellee tendered by mail the following plea and asked that it be filed:

'The said defendant Arthur N. Hofmeyer, by his attorney, comes and says that the road described in the complainant's bill of complaint, which said road leads from Cary's Gate by Cary's house and thence to Route 621 has been used and enjoyed by this defendant, adversely, under a claim of right, exclusively, continuously, uninterruptedly and with the knowledge and acquiescence of the owner of Cary's and that said use and enjoyment has continued for a period of more than twenty years. And this the said defendant is ready to verify.'

Appellant objected to the filing of the plea. On September 15, 1950, after hearing argument of counsel, the chancellor allowed the plea to be amended by inserting before the word 'adversely,' the words 'and his predecessors in title'; ordered the plea to be filed as a plea in bar under Virginia Code, 1950, § 8-213; and announced that a regular jury would be empaneled to try the issue. Appellant, without waiving its objection, filed its general replication.

On September 21, 1950, appellant renewed its motion to strike defendant's plea upon the grounds that appellee had falsely stated that it had formerly agreed to a trial of the issue by a jury; that only the chancellor should hear the evidence in order that he might properly exercise his right and discretion in giving or withholding credit to a witness who had actually given false testimony at a former hearing before Judge Armistead; and that the plea was filed beyond the time limit prescribed by Virginia Code, 1950, § 8-121.

The motion was overruled, the court stating that the false testimony referred to, if any, was not heard by him. A trial was held upon the issue joined on the plea as amended. At the conclusion of the evidence of the appellee, the court overruled a motion to strike the evidence as insufficient to show that the road in dispute had been 'used uninterruptedly, adversely, continuously for a period of more than twenty years.'

In making his ruling, the chancellor said:

'The evidence in the case, as developed to this point that the well defined roadway in question, in location as it stands today has been in use since 1910 or for a period of about 39 years before this suit was brought. It has also been shown by the evidence that in origin the use of the road was permissive or by license of Smith who was the then owner of Cary's.'

Over the objection of the appellant, the appellee was recalled and allowed to further testify. At the conclusion of all the evidence, the motion to strike the evidence was renewed and overruled.

Sundry instructions were offered by appellant and others given over his objection. Due exceptions were taken.

On September 27, 1950, after hearing the evidence, the instructions of the court, and argument of counsel, the jury returned a verdict 'for the defendant, Arthur N. Hofmeyer, on his plea.'

Appellant moved that the verdict of the jury be set aside for reasons theretofore stated, and upon the further ground that the verdict, at most, raised only a prima facie presumption of a lost grant, and it devolved upon the court to determine whether or not that presumption was rebutted by the evidence. After an adverse ruling, it moved that it be permitted to introduce additional evidence to rebut the prima facie presumption. The motion was overruled and the judgment entered on Jan. 15, 1951, in accordance with the verdict. The court rendered a written opinion expressly justifying its action; but expressed some doubt about several phases of the case, especially with reference to the propriety of one of its instructions to the jury.

Notwithstanding the foregoing, the appellant filed on February 2, 1951, additional depositions in support of its factual contentions. Defendant was not present at the taking of the depositions, and they were objected to on the ground that reasonable notice had not been given to him; that they were not signed by the witnesses; and that since the matter had been decided there was no issue pending before the court.

On the next day, appellant moved to vacate the final decree of January 15, 1951, upon the ground that the court had made erroneous statements to the jury with respect to the evidence. The court vacated the decree, it having been entered less than twenty-one days prior thereto, and continued the cause for further argument.

On March 14, 1951, the court permitted the appellant to file the depositions taken subsequent to the hearing of the cause as a part of the record; but held that 'none of them are proper to be considered, either as after discovered evidence or otherwise.' and adhered to its ruling theretofore made to enter judgment upon the verdict of the jury. Final judgment was entered accordingly.

The two real questions in this case are, first, whether the court erred in allowing the defendant to file his plea on September 15, 1950, and directing the issue thereunder to be tried by a jury under § 8-213, Code of 1950; and, second, whether the evidence justified the verdict of the jury that the appellee had acquired the prescriptive right to use the disputed road. These questions will be discussed in their order.

Code of 1950, § 8-121 *, provides:

'A defendant in equity upon whom process has been executed shall file his answer or other defense in the court or in the clerk's office of the court in which the suit or proceeding is pending within ninety days from the day on which process has been returned executed, or if the bill shall not have been filed at that time, then within ninety days after the bill shall have been properly filed at rules, or after any amended or supplemental bill shall have been filed, unless after notice to the adverse party, and for good cause shown, additional time be given by the court, or the judge thereof in vacation, within which to file the same. After the lapse of such period of ninety days, or such additional time, if any such be granted, no answer or other defense shall be received except for good cause shown and upon payment to the complainant of his costs up to that time, or such part thereof as the court or judge shall deem reasonable, and unless the defendant will undertake to file his answer within such time as the court or judge shall direct, and submit to such other terms as the court or judge shall direct, for the purpose of speeding the cause; * * *.'

The purpose of this section is to require an orderly and timely presentation of defenses in order to prevent delay in the prosecution of a suit. It is not intended to cut off the defendant from a full defense. The provision of the statute that delay in filing the defendant's pleas shall not be allowed, except for good cause shown, has been liberally construed. Its applicability rests within the sound judicial discretion of the trial court, it being impossible to lay down a rule which will be binding in all cases. Worsham v. Nadon, 156 Va. 438, 157 S.E. 560; Stiers v. Hall, 170 Va. 569, 197 S.E. 450; Robins v. Massey, 179 Va. 178, 18 S.E. (2d) 385.

The intendment of this statute is directed chiefly against permitting the defendant, by filing his defense after the limitation of time specified, to put the plaintiff to further proof than that already theretofore made; thus causing a delay or continuance because of matters put in issue for the first time. Gray v. Francis, 139 Va. 350, 124 S.E. 446.

Under the peculiar circumstances here, the controversy as to whether there was an original agreement to try the issue before a jury, the fact that the same issue was raised in the plea as set out in the answer and in the issue out of chancery, the change of trial judges, the delay in hearing the preliminary motions, and the lack of any evidence showing prejudice to the appellant all furnish good cause for the exercise of the discretion of the trial judge in determining whether or not the plea should be filed. Its filing was not made the ground, either for a continuance of the case, or postponement of the trial. It brought in no new...