Langhorne v. Waller's Ex'r

• Citation: 76 Va. 213
• Parties: LANGHORNE v. WALLER'S EX'OR.
• Decision Date: 16 February 1882
• Court: Virginia Supreme Court

76 Va. 213

LANGHORNE v. WALLER'S EX'OR.

Supreme Court of Appeals of Virginia.

February 16, 1882

Error to judgment of the corporation court of Lynchburg, entered 26th December, 1876, in suit of H. M. Waller, executor of Robert P. Waller, deceased, against Charles S. Langhorne.

On a previous day of the term, the cause had been set for trial on the 26th proximo, for convenience and by agreement of counsel. On 20th the court adjourned to, but did not sit on 23d December; yet on 26th December it sat and tried and determined the cause and entered judgment against the defendant for $2,750, with interest, and subject to certain credits, as therein stated. Defendant objected to the entry of any judgment, for the reason that the December term of the court, according to law, had ended. This objection the court overruled, and defendant excepted, and obtained writ of error and supersedeas from one of the judges of this court.

John W. Daniel, E. P. Goggin, for appellant.

The judgment complained of was coram non judice, and void. When the court adjourns from one day to another the term does not fail, provided three days do not elapse between sittings. But when there is no sitting for six days (as between 20th and 26th December), by reason of a failure to sit according to adjournment, it is plain, we think, that any after-sitting is invalid. Code 1873, ch. 157, § 3 and § 14.

Ould & Carrington, Kirkpatrick & Blackford, for appellee.

1. The point in issue is the correctness of the last proposition of the appellant's counsel. They seem to have overlooked the 15th section of chapter 157, whereon the court below evidently based its decision. This section provides fully clearly, and decidedly, the point in controversy.

2. Is not the statute merely directory, and does it not follow that jurisdiction is avoided, if the court fails in a literal compliance with the direction? See New Orleans v. Stark, 50 La. Annual, 614; Potter'e Dwarris on Statutes, pp. 221-2 and note 29 on p. 222; Cooley on Constitutional Limitations, pp. 74-78.

OPINION

CHRISTIAN, J.

The court is of opinion that there is no error in the judgment of the corporation court of Lynchburg.

The record presents but a single question, which is to be determined by the true construction to be given to sections 3, 14 and 15 of chapter 157 of the Code of 1873.

The facts upon which this question arises are set forth in the following bill of exceptions:

Be it remembered, that when this cause was tried on the 26th day of December, 1876, and before the judgment therein was entered the defendant, by his counsel, objected to the entry of any judgment therein for the reason that the December term of this court, according to law, had ended. The court on Wednesday, the 20th day of December, 1876, adjourned to Saturday, the 23d day of said month, and there has been no sitting of the said court from the said 20th day of December to the said 26th day of the said month, notwithstanding an entry appears on the order book of an adjournment on Saturday, the 23d, to Tuesday, the 26th of said month (which order, on the motion of the defendant, was ordered to be stricken out). But the court being of opinion that it has the right to sit at any time before 4 o'clock of the third day after the said 23d of December, to which it had adjourned as aforesaid, and because at a previous day of the December term, 1876, the trial of this cause had been agreed and set to be had on the 26th of said month for the convenience of the counsel on both sides, the court then stating that it would keep the court open for that purpose, overruled the said objection and caused...