Rockwell v. Allman

Decision Date08 March 1971
Citation179 S.E.2d 471,211 Va. 560
PartiesArthur H. ROCKWELL v. Kermit E. ALLMAN, Admr., etc., et al.
CourtVirginia Supreme Court

W. M. Gravatt, Jr., Blackstone (Benjamin E. Chapman, Salem, on brief), for plaintiff in error.

W. H. Jolly, Salem (Kime, Jolly & Clemens, Salem, on brief), for defendants in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.

PER CURIAM.

On December 15, 1964 Arthur H. Rockwell received personal injuries when a truck he was driving collided with a car operated by Jacie Arbell Underwood Shotwell in Roanoke county. Mrs. Shotwell died as a result of injuries she sustained in the accident. Information supplied by the Division of Motor Vehicles and State police indicated that Mrs. Stotwell resided in the City or Roanoke. Upon motion of Rockwell the Circuit Court of the City of Roanoke, pursuant to the provisions of Code § 64--124 (now § 64.1--131), appointed the City Sergeant, Kermit E. Allman, Administrator of Mrs. Shotwell's estate. On November 14, 1966 Rockwell filed in that court a motion for judgment against Allman seeking damages for his injuries. Allman filed a responsive pleading thereto.

On July 9, 1968, the date set for trial, counsel for Allman introduced evidence that showed Mrs. Shotwell resided in 'a mansion house' owned by her in Botetourt county at the time of her death; that on December 21, 1964 Corldeen Frances Berry and Barbara Jean Higgins, daughters of Mrs. Shotwell, qualified as administratrices of her estate in the Circuit Court of Botetourt County, and that the administratrices' final account was filed and approved on August 16, 1965.

On July 30, 1968 Allman filed a motion for summary judgment on the ground that his appointment as administrator was void because the court lacked jurisdiction to make the appointment. On the same day Rockwell moved the court to permit him, pursuant to Code §§ 8--97 and 8--119 and Rule 3:13, to amend his motion for judgment 'to correct a misnomer' by substituting the administratrices as the party defendant in lieu of Allman. The trial court overruled Rockwell's motion to amend and granted Allman's motion for summary judgment.

The narrow issue presented in this appeal is whether the naming of Allman as the party defendant was a misnomer.

Under the facts of this case there was no misnomer. Allman's appointment was void. Andrews v. Avory, et al., 55 Va. (14 Grat.) 229, 236 (1858). Any judgment rendered against...

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16 cases
  • Hampton v. Meyer
    • United States
    • Supreme Court of Virginia
    • August 27, 2020
    ...a misnomer or a misjoinder. A misnomer is a mistake in the name, not the identification, of a party. SeeRockwell v. Allman , 211 Va. 560, 561, 179 S.E.2d 471 (1971) (per curiam) ("A misnomer is a mistake in name, but not person."). In other words, a misnomer occurs where the proper party to......
  • Westwood Ltd. v. Grayson, CL-2016-09728
    • United States
    • Circuit Court of Virginia
    • September 8, 2017
    ...where the wrong defendant is named." See Swann v. Marks, 252 Va. 181, 184, 476 S.E.2d 170, 171 (1996) (citing Rockwell v. Allman, 211 Va. 560, 561, 179 S.E.2d 471, 472 (1971)). While the Plaintiff may thus not avail itself of the relief offered by correction of a misnomer, a corollary quest......
  • Richmond v. Volk, Record No. 150192.
    • United States
    • Supreme Court of Virginia
    • January 28, 2016
    ...a misnomer or a misjoinder. A misnomer is a mistake in the name, not the identification, of a party. See Rockwell v. Allman, 211 Va. 560, 561, 179 S.E.2d 471, 472 (1971) (per curiam) ("A misnomer is a mistake in name, but not person."). In other words, a misnomer occurs where the proper par......
  • Ricketts v. Strange, Record No. 160311
    • United States
    • Supreme Court of Virginia
    • February 16, 2017
    ...not the identification, of a party." Richmond v. Volk , 291 Va. 60, 64, 781 S.E.2d 191, 193 (2016) (citing Rockwell v. Allman , 211 Va. 560, 561, 179 S.E.2d 471, 472 (1971) ). Ricketts and McLean are not the same person. The "right person" was McLean, but he was not incorrectly named. Rathe......
  • Request a trial to view additional results

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