Parker v. Prince William County

• Decision Date: 18 June 1956
• Docket Number: No. 4516,4516
• Citation: 198 Va. 231,93 S.E.2d 136
• Court: Virginia Supreme Court
• Parties: LOUIS H. PARKER, INDIVIDUALLY AND TRADING AS PARKER HOUSE MOTEL v. PRINCE WILLIAM COUNTY, VIRGINIA, ET AL. Record

Page 136

93 S.E.2d 136

198 Va. 231

LOUIS H. PARKER, INDIVIDUALLY AND TRADING AS PARKER HOUSE MOTEL v. PRINCE WILLIAM COUNTY, VIRGINIA, ET AL.

Record No. 4516.

Supreme Court of Appeals of Virginia

June 18, 1956.

William A. Moncure (Clarke, Richard, Moncure & Whitehead, on brief), for the plaintiff in error.

Leonard L. Lonas, Jr. and Frank P. Moncure (Stanley A. Owens, on brief), for the defendants in error.

JUDGE: SMITH

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

Louis H. Parker is the owner of approximately three acres of land adjoining Fuller Heights Road in Prince William county, on a portion of which he maintains and operates a motel known as the Parker House Motel. In 1952 a sewage treatment plant was constructed by Prince William county, pursuant to an ordinance of its Board of Supervisors, on a site immediately across the road from Parker's motel. Thereafter, on July 28, 1953, Parker filed a claim for $31,500 with the Board of Supervisors in accordance with the provisions of Code, §§ 15-257 and 15-261, asserting that the sewage treatment plant 'gives off offensive odors, attracts flies and other insects, contains extensive areas of open sewage from an untreated stage to the final treatment stage, produces bubbles and refuse which are blown over the surrounding area by the winds and is of such an undesirable nature and is a nuisance reducing the sale and rental value of the properties and irreparably damaging the owner in the amounts set forth above.' He further asserted that these acts constituted the taking of his property without his consent and without due process of law in violation of certain provisions of the Virginia and federal constitutions.

Although on several occasions Parker requested that the Board take action on his claim, nothing was done until May 6, 1954, when it was disallowed in his absence and without giving him notice that his claim would be considered on that day, However, on or about May 12, 1954, his counsel received through the mail a written notice of the Board's action.

Subsequently, on June 2, 1954, Parker filed in the Circuit Court of Prince William County what he described as 'his appeal in the form of a Notice of Motion for Judgment' from the action of the Board, and at the same time he tendered to the clerk of the trial court a check for $50.00 marked 'for guarantees of court cost in August.' This check was accepted by the clerk as a 'Cash Cost Bond Louis H. Parker v. Prince William County,' and in due course cashed by him. A demurrer filed by the Board on June 22, 1954 was subsequently dismissed, and on November 6, 1954, it filed its grounds of defense.

Thereafter, on March 9, 1955, the trial court on its own motion raised the question of its appellate jurisdiction, questioning whether Parker had filed an appeal bond, and on March 16, 1955, Parker tendered an appeal bond with surety and petitioned the court for leave to amend and convert his motion for judgment into an original action against the Board pursuant to Code, § 15-260. * In its final judgment the trial court denied the prayer of the petition and dismissed the case for lack of jurisdiction, to which judgment we awarded Parker this writ of error.

The vital issue presented is whether Parker perfected his appeal within the time provided by Code, § 15-259, which reads as follows:

'Appeal from disallowance of claim. -- When a claim of any person against a county is disallowed in whole or in part by the board of supervisors, if such person be present, he may appeal from the decision of the board to the circuit court of the county within thirty days from the date of the decision; if he be not present, the clerk of the board shall serve a written notice of the disallowance on him or his agent, and in that case he may appeal to the court from the decision within thirty days after service of such notice; but in no case shall the appeal be taken after the lapse of six months from the date of the decision, nor shall an appeal be allowed in any case unless the amount disallowed exceeds ten dollars. Such appeal may be taken by causing a written notice thereof to be served on the clerk of the board and executing a bond to such county, with sufficient surety to be approved by the clerk, with condition for the faithful prosecution of such appeal, and the payment of all costs that shall be adjudged against the appellant by the court.' (Italics supplied).

The parties agree that the Board did in fact disallow Parker's claim, that he was not present or represented at the meeting when this was done, and that his counsel received written notice through the mail of the Board's action. Parker contends, however, that the Board is estopped to assert that his claim has been legally disallowed as required by Code, § 15-259, because the mailing of notice does not comply with the notice requirements of Code, §§ 8-51 (entitled 'Mode of serving notice'), and 8-52 (entitled 'Who may serve notices; return '). But he overlooks the specific language of Code, § 8-53, which provides that a notice in writing 'which has reached its destination within the time prescribed by law, if any, shall be sufficient, although not served in the manner mentioned in the two preceding sections.' In the light of this provision it is clear that the Board's disallowance of Parker's claim was legally communicated to him and that under Code, § 15-259 the thirty day period in which he had the opportunity of perfecting his appeal began to run on the day he received the notice by mail, which was on or about May 12, 1954. But even if it be assumed that the notice of disallowance of his claim did not conform to the statutory requirements of Code, §§ 8-51 and 8-52, the maximum period, irrespective of notice, within which to take an appeal from the Board's decision was 'six months from the date of the decision,' which period expired on or before November 6, 1954. Code, § 15-259.

Code, § 15-259 requires that an appeal from the decision of the Board be taken 'by causing a written notice thereof to be served on the clerk of the board and executing a bond to such county, with sufficient surety to be approved by the clerk.' Parker attempted to comply with these requirements by serving written notice of appeal on the clerk of the Board and filing with the clerk of the court a check for $50.00 as a guarantee of court costs. But it was not until March 16, 1955, some nine and one half months later, that a bond with surety was actually...