Norfolk & W. R. Co v. Dunn Aw Ay's Adm'r

• Decision Date: 09 April 1896
• Citation: 24 S.E. 698,93 Va. 29
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. R. CO. v. DUNN AW AY'S ADM'R.

24 S.E. 698

93 Va. 29

NORFOLK & W. R. CO.

v.DUNN AW AY'S ADM'R.

Supreme Court of Appeals of Virginia.

April 9, 1896.

Railroad Companies—Injury to Trespassers on Right of Way—Review on Appeal—Motion for New Trial — Jurisdiction on Appeal — Failure of Clerk to Comply with Directory Statute.

1. A railroad company was not liable for the killing of a boy 11 years old, but in size about 8 years, who went to sleep between the ties in a cut surrounded by trees, which cast shadows on the track; it appearing that the engineer saw the body in time to have stopped the train, but thought it was a shadow, bush, or dog; that, when he discovered it was a human being, he shut off the steam, applied the brakes, reversed the engine, and did all in his power to avoid the accident; and that he could not have discovered earlier what the object was. Riely and Cardwell, JJ., dissenting.

2. A judgment, upon a demurrer to evidence, may be reviewed, though no motion for a new trial was made in the court below. Railroad Co. v. Scott (Va.) 20 S. E. 826, overruled.

3. Code, § 3457, requiring notice to be given to the opposite party of an intention to apply for a transcript on appeal or writ of error, and providing that a certificate of the clerk stating that such notice has been given shall accompany the transcript when presented to the appellate court, is merely directory, and a failure to comply therewith will not defeat the jurisdiction of such court. Mears v. Dexter, 11 S. E. 538, 86 Va. 828, followed.

4. Such provision ought, however, to be complied with; and it is a violation of the du-ites of his office for a clerk to make out and deliver a transcript of the record until it appears that the required notice has been given.

Error to circuit court, Halifax county.

Action by H. T. Dunnaway's administraton against the Norfolk & Western Railroad Company to recover for the death of intestate. From a judgment for plaintiff., defendant brings error. Reversed.

Kirkpatrick & Blackford and A. W. Nowlin, for plaintiff in error.

Wm. R. Barksdale, H. Edmunds, and W. P. Barksdale, for defendant in error.

BUCHANAN, J. The defendant here insists that the writ of error in this case was improvidently awarded, and should be dismissed. He bases this contention on two grounds:

First. That the plaintiff company did not comply with section 3457 of the Code, which provides that the party intending to apply for an appeal or writ of error shall give notice to the opposite party or his counsel, if either reside in the state, of his intention to apply for a transcript of the record which is required to accompany his petition for an appeal or writ of error; that the clerk of the court shall not make out and deliver such transcript unless it is made to appear that such notice was given; and that a certificate of the clerk stating the fact that such notice has been given shall accompany such transcript when presented to an appellate court or judge.

No such notice was given in this case, nor did the clerk make the required certificate.

This question was fully considered by this court in the case of Mears v. Dexter, 86 Va. 828, 11 S. E. 538, and the conclusion reached that these provisions of the statute were merely directory, and not designed to limit the jurisdiction of the appellate court.

The question of determining whether a statute is mandatory or directory only is frequently one of much difficulty; and, if this statute was before the court for the first time for construction, I would strongly incline to the opinion that it should be construed to be mandatory.

Where an officer fails to perform some duty imposed upon him by law, and the party whose rights are to be affected by its nonperformance has done all that the law requires of him, there is good reason why the law should be held directory, unless the act required to be done by the officer is of the essence of the transaction; for no man ought to be deprived of his rights for the failure of a public official to perform his duty when he himself has done all that he is required to do to protect them; but, when the party himself fails to perform a plain duty imposed upon him by law, the ease is very different. If his rights are lost, they are lost by his own negligence, and no one is responsible for it but himself. For the courts to hold in such a case that his failure or refusal to obey the law shall not in any wise affect his rights would seem to be annulling rather than administering the law. The case at bar is an illustration of the effect of holding the statute to be directory, for the record shows that the plaintiff in error knowingly, if not purposely, omitted to give the notice required. But as the decision referred to was made at the March term, 1890, of this court, and three general assemblies have since been elected by the people, and no amendment made to that section of the Code, it would seem that the construction given it by this court meets with the approval of the lawmaking power. Again, since that decision was made, litigants may have been preparing their cases for the appellate court under the impression that strict compliance with the requirements of that statute was not absolutely essential to their right of appeal. To hold now that the statute was mandatory, and dismiss all appeals and writs of error in which those provisions of the statute had not been complied with might work great injustice. We are of opinion, therefore, that the provisions of the statute in question should be held to be directory, in accordance with the decision of the court in the case of Mears v. Dexter.

The provisions of the statute are wise and salutary, and the party wishing to apply for an appeal or writ of error and the clerk of the court ought to comply with them. It is a plain violation of the duties of his office for a clerk to make out and deliver a transcript of the record until it appears that notice of the application has been given as required by law.

The other ground upon which the motion to dismiss is based is that there was no motion for a new trial in the circuit court, and that without such motion this court has no power to review the proceedings of that court. The case of Railroad Co. v. Scott (Va.) reported in 20 S. E. 826, is relied upon to sustain this contention. That case presented, as does this, the question whether the judgment of the trial court upon a demurrer to evidence can be reviewed by this court when there was no motion for a new trial in that court, and it was held that it could not. That decision is not, in our opinion, in accord with the uniform practice in this court prior thereto. The case of Newberry v. Williams, 89 Va. 298, 15 S. E. 865, and the cases therein cited, are relied upon to sustain it.

In the case of Newberry v. Williams there was no demurrer to the evidence, but the whole case was submitted to the jury, who found a verdict for the defendant. This court held that it had no power to review the proceedings had in that case, because there had been no motion for a new trial in the circuit court. The case was reviewed by Lewis, P., who delivered the opinion of the majority of the court and the conclusion reached that if errors, or supposed errors, of any kind, are committed by a court in its rulings during the trial of a case by a jury, the appellate court cannot review these rulings unless two conditions concur, viz.: First the rulings must have been objected to when made, and a bill of exceptions taken, or the point reserved, and the bill of exceptions taken during the term; and, secondly, a new trial must also have been asked, overruled, and objected to, and this noted upon the record. There is no intimation in that case, however, that this court could not review the judgment of the trial court on a demurrer to evidence unless there had been a motion for a new trial.

One of the cases cited as authority and commented upon by Judge Lewis was the case of Humphreys v. West, 3 Rand. (Va.) 516, in which there was a demurrer to the evidence, and there was no motion for a new trial. The court refused to consider the question whether or not the conditional verdict found in that case was excessive, because there had been no motion for a new trial, but reviewed the judgment of the trial court upon the demurrer to evidence, reversed it, and gave judgment in favor of the opposite party.

Green v. Judith, 5 Rand. (Va.) 1, and Briggs v. Hall, 4 Leigh, 484. were cases in which there were demurrers to evidence. No motion for a new trial was made in either; yet this court took jurisdiction, reviewed the judgments on the demurrer to evidence, and affirmed the trial court in each case.

In the late case of W. U. Tel. Co. v. Virginia Paper Co., 87 Va. 418, 12 S. E. 755, in which there was also a demurrer to evidence, the court refused to consider any objection to the verdict of the jury, on the ground that the damages were too small, because there was no motion for a new trial; yet the court took jurisdiction of the case, reviewed the judgment of the trial court upon the demurrer to evidence, and affirmed it.

All these cases were cited and commented on with approval by Lewis, P., in the case of Newberry v. Williams.

Instead of these authorities, which were relied on in Railroad Co. v. Scott, sustaining the conclusion reached in that case, they show that it has not been the practice to move for a new trial in the court below in order to give this court the right to review its judgment upon a demurrer to evidence.

The case of Riddle v. Core, 21 W. Va. 530, shows that the same practice prevails in West Virginia.

The plaintiff in a writ of error to a judgment on a demurrer to evidence, where, as in this case, there is no objection to the verdict of the jury, does not wish a new trial. He wishes the judgment complained of reversed, and a judgment rendered in his favor. This court, in such a case as this, cannot grant a new trial. It must either affirm the judgment of the court below, or...