Richardson v. Shank

• Decision Date: 12 September 1930
• Citation: 154 S.E. 542
• Court: Virginia Supreme Court
• Parties: RICHARDSON. v. SHANK et al.

154 S.E. 542

RICHARDSON.

v.SHANK et al.

Supreme Court of Appeals of Virginia.

Sept. 12, 1930.

The statute requiring bond in cases of appeal, writ of error, etc., excepts from its provisions cases where the appeal, writ of error, or supersedeas is proper to protect the "estate of a decedent, " infant convict, or insane person, etc.

[Ed. Note. —For other definitions of "Estate of Deceased Person, " see Words and Phrases.]

Code 1919, § 6355, as amended by Acts 19216, c. 10, directs a dismissal of the writ in case of failure to give such bond "as is required to be given" before the writ of error "takes effect." Section 6351 provides, in effect, that the writ of error shall not take effect until bond be given by the petitioner, except where the writ is proper to protect the "estate of a decedent, " etc. It was contended that, since this was an action for death, and since there were surviving brothers and sisters who Would be entitled to the proceeds of the judgment, free from decedent's debts, there was no "estate to be protected."

According to one witness for plaintiff, decedent who crossed the street between intersections suddenly stepped into the path of the automobile from behind a parked automobile. However, there was evidence tending to show defendant's negligence, such as that there were no other automobiles to obstruct the view, that defendant's automobile was moving on the wrong side of the street at an unlawful rate of speed, and had sounded no warning signal, etc.

Error to Circuit Court, Roanoke County.

Action by notice of motion by George R. Richardson, administrator of Terry Webber, deceased, against DeWitt Shank and another. To review a judgment in favor of defendants, plaintiff brings error.

Motion to dismiss writ overruled. Judgment reversed and remanded.

T. W. Messick and A. B. Hunt, both of Roanoke, for plaintiff in error.

Cocke, Hazlegrove & Shackelford, of Roanoke, and Kime & Kime, of Salem, for defendants in error.

PRENTIS, C. J.

This is a motion made by the administrator of Terry Webber alleging that his death was the result of the actionable negligence of De-Witt Shank, an infant son of Henry D. Shank, while operating his father's automobile on Main street in Salem.

There was a judgment in favor of the defendant to which a writ of error has been allowed.

1. There is a motion here by the defendant in error to dismiss the writ because no appeal bond has been given, and it is contended that no bond can now be given because more than six months have elapsed since the date of the final judgment.

That the failure to give bonds which are properly required under Code 1919, § 6351, within the period fixed by statute (how six months from the date of the decree or judgment), necessitates the dismissal of the writ of error or appeal pursuant to Code 1919, § 6355, as amended by Acts 1926, p. 18, c. 10, is certain. This statute so directs, and ithas always been construed as mandatory. Yarborough v. Deshazo, 7 Grat. (48 Va.) 374; Otterback v. Alex. & F. Ry., 26 Grat. (67 Va.) 940; Pace, Assignee, v. Ficklin's Ex'x, 76 Va. 292; Poff v. Poff, 128 Va. 62, 104 S. E. 719; Witt v. Witt's Ex'r, 146 Va. 256, 135 S. E. 681.

In this case, however, no bond was required by the judge of this court who allowed the writ. The defendants claim that under the statute, section 6351, a bond was imperative, and that the jurisdiction of this court depends upon the execution of such a bond within the time limited (six months). That statute does not prescribe a bond as necessary if the "appeal, writ of error or supersedeas is proper to protect the estate of a decedent, infant, convict or insane person, " etc. It has long been construed to relieve every administrator from giving such bonds. The most obvious reasons therefore are: That such a fiduciary has little personal interest in the action, has already given a bond on his qualification, and is generally the only person who can appeal because the persons ultimately entitled to the sum recovered are never parties to such litigation in common-law actions and frequently are not parties in equity suits.

It is contended, however, that, because this case depends upon the statute allowing a recovery of damages for death by wrongful act (Code 1919, § 5787, as amended by Acts 1920, c. 25), the exception relieving personal representatives from giving appeal bonds does not apply. This is the section which provides for the distribution of the amount of the recovery "to the surviving widow or husband and children and grandchildren of the deceased, or if there be none such, then to the parents, brothers and sisters of the deceased." The succeeding section, Code 1919, § 5788, contains these additional directions as to procedure and definitions of the rights of all persons who may, by the terms of the statute, have an interest in the recovery. This section 5788 reads:

"The verdict, if there be one, and the judgment of the court shall, in all cases, specify the amount or the proportion to be received by each of the beneficiaries, if any such there be. No verdict, however, shall be set aside for failure to make such specification, but if the jury has been discharged their failure to make the specification at the term at which the verdict is rendered shall be corrected by the trial court at any time before judgment is entered, and for this purpose it may hear evidence if deemed necessary. The amount recovered in any such action shall be paid to the personal representative, and after the payment of costs and reasonable attorney's fees, shall be distributed by such personal representative to the surviving wife, husband, child, and grandchild of the decedent; or if there be no such wife, husband, child or grandchild, then to the parents, brothers and sisters of the decedent in such proportions as has been ascertained by the judgment of the court, and shall be free from all debts and liabilities of the deceased; but if there be no such wife, husband, child, grandchild, parent, brother or sister, the amount so received shall be assets in the hands of the personal representative to be disposed of according to law. This and the preceding section are subject to this proviso: Where the decedent has left a widowed mother and also a widow, but no child or grandchild, the amount recovered shall be divided between the mother and the widow in such portions as the jury or court may direct."

From this It is seen that the amount of the recovery, less fees and costs, must be paid to the personal representative for distribution to those entitled thereto. If there be none of the class of preferred distributees, then the amount received "shall be assets in the hands of the personal representative to be disposed of according to law." This seems to mean that, in the absence of any of the preferred class of distributees, the fund is liable for the decedent's debts, and that the surplus is to be distributed to kinsmen of remote degree just as all other personal estate not bequeathed is distributed.

It is conceded that if, in fact, in this case there were none of the preferred class, then no bond would be necessary or proper, but that,...