Skeens v. Com., 3776
| Decision Date | 07 May 1951 |
| Docket Number | No. 3776,3776 |
| Citation | 192 Va. 200,64 S.E.2d 764 |
| Court | Virginia Supreme Court |
| Parties | DAVID SKEENS v. COMMONWEALTH OF VIRGINIA. Record |
W. B. Snidow and Samuel A. Martin, for the plaintiff in error.
J. Lindsay Almond, Jr., Attorney General, and Frederick T. Gray, Assistant Attorney General, for the Commonwealth.
The judgment attacked in this case was entered on a verdict finding David Skeens guilty of unlawful wounding and fixing his punishment at confinement in the penitentiary for five years. The Attorney General moved to dismiss the writ of error on the ground that the defendant did not file his notice of appeal and assignments of error within sixty days after final judgment.
The motion to dismiss involves the construction of Rule of Court 5:1, Sec. 4, providing:
The main objects in adopting the new rules of appellate procedure were to simplify the method of getting up the record, clarify the issues and reduce the cost of appeal. These objects were accomplished by having the clerk of the trial court transmit the original papers to one of the seven justices, or to the clerk of the Supreme Court of Appeals, and by printing only that part of the record necessary to decide the questions raised.
Under the old method of making up the record for this court (Code, sec. 8-470) counsel, by agreement, could reduce the size of the record by requiring the clerk to copy only that part of the record necessary for the Supreme Court of Appeals properly to decide the case, or they could agree upon the facts, or any part of them, and direct the clerk to copy such statements in lieu of copying the complete record. Unfortunately counsel did not avail themselves of these provisions, with the result that the entire record was usually printed at unnecessary cost, and this court was required to read many pages of printed matter having nothing to do with the issues before it.
The appellate procedure, now Part Five of the Rules of Court, does not require appellee to consent to anything, nor does it give him an opportunity to argue that omitted parts of the printed record are material. It provides for the printing of only the material parts of the record, and yet the entire record of the proceedings in the trial court is available to the Supreme Court of Appeals in the event some vital part of it is by mistake not designated to be printed.
What constitutes the record of a case in the trial court is set forth in detail in Rule 5:1, Sec. 3. This includes a transcript of the oral testimony and other incidents of the trial when presented to the trial judge within sixty days and signed by him within seventy days after final judgment. In addition to seeing that the record in the trial court is thus completed, appellant, in order to perfect his appeal, must take the following steps: (1) within sixty days after final judgment deliver to or serve on opposing counsel a copy of his notice of appeal and assignments of error, and file the originals with the clerk; (2) after the record is made up, file with the clerk a designation of the parts of the record he desires printed; (3) after twenty days from the time he has filed his designation for printing the record he must notify the clerk to transmit the record in time for it to be delivered to the clerk of the Supreme Court, or one of the justices, within four months from the date of final judgment; (4) he must deliver to opposing counsel a copy of his petition for appeal and file the original with the clerk of this court, or the justice to whom the record has been transmitted, within the four months' period; and (5) pay the filing fee of $1.50 to the clerk of the Supreme Court.
The precise question presented is whether the provision requiring the appellant to file his notice of appeal and assignments of error within sixty days from date of final judgment is mandatory or directory.
The provision is couched in mandatory terms. The notice of appeal is in lieu of the notice of appellant's intention...
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Leake v. Taylor, Record No. 0737-09-4 (Va. App. 3/30/2010), Record No. 0737-09-4.
...in a timely manner affords the opposing party an ample opportunity to appropriately prepare for appeal. See Skeens v. Commonwealth, 192 Va. 200, 203, 64 S.E.2d 764, 766 (1951). Here, the overall statutory purpose was not undermined by wife's premature filing of notice of appeal in March 200......
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Taylor v. Worrell Enterprises, Inc.
...725-26, 66 S.E.2d 595, 598 (1951); Avery v. County School Board, 192 Va. 329, 332, 64 S.E.2d 767, 769 (1951); Skeens v. Commonwealth, 192 Va. 200, 204, 64 S.E.2d 764, 766 (1951); Puckett v. Commonwealth, 134 Va. 574, 579, 113 S.E. 853, 854 (1922); Belmont v. McAllister, 116 Va. 285, 290, 81......
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State v. Legg
...cases sustain our view that the statutory language here in question must be regarded as mandatory and jurisdictional: Skeens v. Commonwealth, 192 Va. 200, 64 S.E.2d 764; In re Del Campo, 55 Cal.2d 816, 13 Cal.Rptr. 192, 361 P.2d 912; State ex rel. Reid v. District Court, 126 Mont. 489, 255 ......
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Harlow v. Com.
...of sixty days after final judgment * * * notice of appeal and assignments of error' as required by Rule 5:1, § 4. In Skeens v. Commonwealth, 192 Va. 200, 64 S.E. (2d) 764, we held that this rule is mandatory and applies with equal force to both criminal and civil cases. The phrase, 'assignm......