McDowell, by Gravatt v. Dye

• Decision Date: 10 March 1952
• Docket Number: No. 3899,3899
• Citation: 193 Va. 390,69 S.E.2d 459
• Parties: BETSY D. MCDOWELL, BY J. SEGAR GRAVATT, GUARDIAN AD LITEM v. MOLLIE J. DYE. Record
• Court: Virginia Supreme Court

Page 459

69 S.E.2d 459

193 Va. 390

BETSY D. MCDOWELL, BY J. SEGAR GRAVATT, GUARDIAN AD LITEM v. MOLLIE J. DYE.

Record No. 3899.

Supreme Court of Appeals of Virginia

March 10, 1952.

J. Segar Gravatt, for the plaintiff in error.

A. S. Harrison, Jr., for the defendant in error.

JUDGE: WHITTLE

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

Mollie J. Dye recovered a verdict for $10,000 against Betsy D. McDowell in the Circuit Court of Brunswick county, in a suit growing out of an automobile accident in which Mrs. Dye was injured while riding as a guest in a car driven by Mrs. McDowell. Mrs. McDowell was the married daughter of Mrs. Dye and at the time of the accident was approximately twenty years of age. Upon petition of Mrs. McDowell, by her guardian ad litem, a writ of error and supersedeas were awarded to the judgment.

Several errors are relied upon which will be treated in the order assigned.

The immediate question for determination is whether the transcript of the testimony and other incidents of the trial was tendered to the judge within sixty days from the time at which the judgment was entered. (Rule 5:1, § 3(e); Code, 1950, § 8-338)

The parties will be referred to as plaintiff and defendant, the position occupied by them in the trial court.

The trial consumed two days, July 6 and 7, 1950. The verdict of the jury was received by the court on July 7, and the order of that day shows that the defendant immediately moved to set aside the verdict, assigning reasons therefor. The motion was taken under advisement and continued for argument which was heard on October 26, 1950, at which time the court overruled the motion and pronounced judgment upon the verdict. No order was entered on this day, a controversy having arisen between counsel as to the contents of the order to be entered carrying into effect the court's oral pronouncement.

A draft of an order was submitted to the court by counsel for each party on November 4, 1950. Thereupon the court drew its own order, resolving the differences between the parties, antedated the same October 26, 1950, endorsed it and mailed the original to the clerk and copies to counsel.

On December 22, 1950, the transcript, endorsed by counsel, was forwarded to the court at Prince George, Virginia; on December 26, 1950, it was received by the court and marked tendered, and on the same day the court signed the certificate and mailed the transcript the clerk at Lawrenceville.

Counsel for plaintiff later filed a written motion requesting the court to expunge its signature from the certificate claiming that it had been tendered and signed more than sixty days after the time at which the judgment was entered and therefore was too late.

Defendant filed a reply to this motion and filed a separate motion requesting the court to correct the record to show that the order dated October 26, 1950, was not entered on that date but had been endorsed for entry on November 4. Filed in support of the motion was a letter from the trial judge, directed to counsel, dated November 4. The letter refers to the order endorsed for entry on November 4 as the final order in the case.

After hearing argument on the motions on January 2, 1951, the court overruled defendant's motion to correct the record, and sustained plaintiff's motion to expunge the court's signature, to which rulings exceptions were taken.

Simply stated, the question for decision is: Was final judgment entered in this case on October 26 or on November 4, 1950?

On October 26 argument was heard on the motion to set aside the verdict. At this time the court, by oral pronouncement, overruled the motion. This ruling could not be held to be an entry of judgment. Courts of record are required to maintain order books for the purpose of recording systematically the daily proceedings had in court. Orders should be entered by the clerk chronologically.

In this instance the court, without notifying counsel, directed the clerk to reserve a blank space under the date October 26, 1950, for the entry of the final order when approved. The order endorsed for entry by the court on November 4 was copied in this space, therefore the record did not conform to the facts. The order endorsed by the judge should have been spread upon the order book in proper sequence, under date November 4, 1950.

Section 17-27, Code of Virginia, provides: 'The proceedings of every court shall be entered in a book kept for the purpose to be known as the order book. The proceedings of each day shall be drawn up at large and read in open court, by the clerk thereof, at the next session of the court, except those on the last day of a term, which shall be drawn up and read the same day. * * *'

Had this statute been complied with and the proceedings for October 26, 1950, read in open court, there would have been no order respecting the disposition of this case, for, admittedly, the order was endorsed for entry on November 4 and therefore it could not have been spread upon the order book before that time.

Section 8-338, Virginia Code, contains the time limitation within which the transcript must be tendered and signed by the court. It reads: 'Any certificate pursuant to section 8-331 or section 8-332 may be tendered to the trial judge at any time before final judgment is entered, or within sixty days from the time at which such judgment is entered * * *'.

Section 8-330 dealing with the preparation of a record for appeal by means of bills of exception employs the same language as section 8-338, 'within sixty days from the time at which such judgment is entered.'

There is a distinction between the rendition of a judgment and the entry of a judgment. The judgment in the instant case was rendered on October 26, 1950, but it was not entered until November 4, and hence the time runs from the latter date. Vol. 3, Am. Jur., Appeal and Error, § 430, page 147; 4 C.J.S., Appeal and Error, § 445, page 911.

On October 26 the exact order to be entered had not been formulated in the mind of either the court or counsel. Something remained to be done, differences had to be settled. It was contemplated that counsel would submit drafts of an order to the judge for his approval and when they did so on November 4 the court prepared its own order and endorsed it for entry.

It is suggested that if we hold the date of November 4 to be the determining date we will in effect overrule the case of Daley v. Commonwealth, 132 Va. 621, 111 S.E. 111. We do not so interpret our holding. The same argument was advanced in the case of Spicer v. Spicer, 192 Va. 105, 63 S.E. (2d) 773. There, Mr. Chief Justice Hudgins, in distinguishing the cases, said:

'In the Daley case the court not only pronounced judgment on the verdict, it sentenced the defendant, suspended the sentence in order to give him time to prepare his petition for a writ of error, and admitted him to bail. In other words, the trial court did everything necessary to be done in order to make the judgment final. Nothing was left to be done except the ministerial act of the clerk of spreading the different orders of the court upon the order book. It was contemplated that the clerk should write the orders, and in due course, make a permanent record of them.

'In the case now under consideration it does not appear that the clerk * * * was expected to write the orders for entry upon the permanent records. In the order signed by the judge * * * it is stated: '* * * the court, having advised counsel for both plaintiff and defendants it was then ready to render a decision in the matter, proceeded to hold that the verdict of the jury should be sustained * * *.'

'This is not a judgment. It is notice to counsel of the decision of the judge so that they might prepare the proper order making the decision effective. * * * The pronouncement of judgment is one thing, the entry of the judgment is another. * * * ' Our holding in the Spicer Case is equally appropriate here.

'An order may not be entered nunc pro tunc if the rights of any party will thereby be affected adversely. * * * We decline to give a retrospective effect to this judgment order which would result in cutting off the plaintiff's time for applying for a writ of error. ' Baker v. Gaskins, 125 W.Va. 326, 24 S.E. (2d) 277, 278; 11 M. J., Judgments and Decrees, § 41, pp. 70-71.

The final order in this case should have been spread upon the order book, in proper sequence, under date November 4, 1950, which is 'the time at which such judgment is entered '. (Code, § 8-338).

Defendant's next assignment of error deals with the court's failure to strike the evidence and its refusal to set aside the verdict and enter final judgment for the defendant, because it is said, (1) the evidence does not show any act or acts constituting gross negligence on the part of the defendant; (2) the plaintiff failed to show any gross negligence which was the proximate cause of the injury, and (3) the evidence shows that the plaintiff was guilty of contributory negligence and assumed the risk of the negligent acts relied upon.

Here we have the verdict of a jury, approved by the trial judge, which brings the case to us practically as upon a demurrer to the evidence. Section 8-491, Virginia Code. In this situation plaintiff's evidence and all fair inferences which may be drawn therefrom must be accepted as true and evidence in conflict therewith is waived. Woodmen of the World Life Ins. Soc. v. . Grant, 185 Va. 288, 297, 38 S.E. (2d) 450; Bristow v. Brauer, 175 Va. 118, 7 S.E. (2d) 93.

The facts and circumstances surrounding the accident are briefly as follows: On October 11, 1949, defendant secured her husband's permission to use his car for the purpose of taking her mother to Lawrenceville, where Mrs. Dye had a dental appointment for her children, and while in town the defendant was to do some shopping.

The trip to Lawrenceville was uneventful. The car used on the occasion was a 1947 model Ford...