Forrest v. Hawkins

• Decision Date: 13 January 1938
• Citation: 194 S.E. 721
• Parties: FORREST. v. HAWKINS et al.
• Court: Virginia Supreme Court

194 S.E. 721

FORREST.

v.HAWKINS et al.

Supreme Court of Appeals of Virginia.

Jan. 13, 1938.

Error to Circuit Court, Princess Anne County; B. D. White, Judge.

Suit by Robert H. Forrest against Morris S. Hawkins and another, receivers of the Norfolk Southern Railroad Company, and another. To review an adverse judgment, the plaintiff brings error. On motion to dismiss writ of error.

Writ dismissed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Aubrey R. Bowles, Jr., of Richmond, William H. Sands, of Norfolk, and H. Clark Thompson, of Hampton, for plaintiff in error.

James G. Martin, of Norfolk, for defendants in error.

EGGLESTON, Justice.

The defendants in error have filed a motion to dismiss the writ of error on the ground that the bond required by Code, § 6351, as amended by Acts 1934, p. 173, c. 132, was not given within the time prescribed by law.

The petition for a writ of error was filed only seven days before the expiration of the six-month period fixed by Code, § 6337, as amended by Acts 1922, p. 45, c. 41. After the writ of error had been granted, and within the six-month period, there was executed and recorded in the clerk's office below the following instrument:

"Know All Men By These Presents, That we, Robert H. Forrest, by William H. Sands, Atty., Principal, and Royal Indemnity Company, Surety, are held and firmly bound unto the Commonwealth of Virginia, in the sum of Three Hundred Dollars, to the payment whereof, well and truly to be made to the said Commonwealth of Virginia, we bind ourselves, and each of us, our and each of our heirs, Executors and administrators, jointly and severally, firmly by these presents. And we hereby waive the benefit of our exemption as to this obligation. Sealed with our seals, and dated this 10th day of December, one thousand nine hundred thirty-six.

"The Condition of the Above Obligation Is Such, That whereas the plaintiff, Robert H. Forrest by petition to the Supreme Court of Appeals of the State of Virginia, has prayed and obtained a writ of error in and a supersedeas to an order of the Circuit Court of the County of Princess Anne, Virginia, pronounced on the 20th day of May, 1936, in a suit depending in said Court in which the said Robert H. Forrest, as plaintiff and Morris S. Hawkins and L. H. Windholz, Receivers, of Norfolk Southern Railroad Company, and C. W. Parsons, were defendants, was adjudged to recover nothing and was adjudged to pay the said defendants costs upon entering into bond with sufficient security in the Clerk's Office of the said Circuit Court of the County of Princess Anne, Virginia, in the sum of Three Hundred Dollars ($300.00), Now Therefore, if the said Robert H. Forrest shall perform and satisfy the said order in case the same be affirmed, or the said writ of error and supersedeas be dismissed, and shall also pay all damages, costs, and fees which may be awarded against or incurred by the said defendants in the Appelate Court and all actual damages incurred in consequence of the supersedeas, then this obligation to be void; otherwise to remain in full force and virtue. "Robert H. Forrest

"by William H. Sands, Atty. [Seal.]

"Royal Indemnity Company by Leon Banks "Atty-in-Fact"

On December 21, 1936, the attorney for the defendants in error wrote Mr. Sands a letter stating that he had just received a copy of the purported bond, and that at the next term of this court a motion would be made to dismiss the writ on the ground that he, Sands, lacked the necessary sealed authority to execute the instrument on behalf of Robert H. Forrest as principal.

Early in the January term, 1937, after due notice to opposing counsel, a formal motion to dismiss the writ on that ground was filed.

On January 23, 1937, counsel for the plaintiff in error filed in this court a written answer to the said motion to dismiss. To this was attached a writing signed and sealed by the said Robert H. Forrest, under date of January 21, 1937, in which he ratified and confirmed the action of his attorney, William H. Sands, in signing and sealing on his behalf the purported bond.

We reserved action on the motion to dismiss until full argument was had thereon when the case was reached on the docket.

Code, § 6351, as amended by Acts 1934, p. 173, c. 132, provides:

"Except where an appeal, writ of error or supersedeas is proper to protect the estate of a decedent, infant, convict or insane person, or to protect the interest of any county, city or town, of this Commonwealth, the same shall not take effect until bond with surety approved by the trial court, or its clerk be given or filed in the clerk's office of the trial court, by the appellants or petitioners, or one or more of them, or some other person, in a penalty to be fixed by the court or justice, by, or in which, the appeal, writ of error or supersedeas is allowed or entered."

This language implies, we think, that (except in certain instances with which we are not here concerned) before the appeal or writ of error or supersedeas shall become effective, there must be given or filed in the clerk's office a "bond"; that is, a sealed instrument, not merely a written instrument, which must be signed by (1) a principal, who may be either the "appellants or petitioners, or one or more of them, or some other person, " and (2) an approved surety.

In the recent case of Clinch Valley Lumber Corp. v. Hagan Estates, 167 Va. 1, 187 S.E.. 440, we pointed out that the right of appeal is statutory, and that the requirements of this section must be complied with. What we said there need not be repeated here. That appeal was dismissed because the bond was not signed by a surety as required by this statute. We held that the substitution of a certi-fied check for the surety did not comply with this...