The Covington Virginian v. Woods, Record No. 2744.

• Decision Date: 13 March 1944
• Docket Number: Record No. 2744.
• Citation: 182 Va. 538
• Court: Virginia Supreme Court
• Parties: THE COVINGTON VIRGINIAN, INC. v. R. C. WOODS, TRADING AS COVINGTON NEWS AGENCY.

Page 538

182 Va. 538

THE COVINGTON VIRGINIAN, INC. v. R. C. WOODS, TRADING AS COVINGTON NEWS AGENCY.

Record No. 2744.

Supreme Court of Virginia, Richmond.

March 13, 1944.

Present, Campbell, C.J., and Hudgins, Gregory, Eggleston and Spratley, JJ.

1. BONDS — Seal — Distinguishing Feature. — A bond is a written obligation under seal. The seal is the distinguishing feature which imports solemnity and binding value.

2. BONDS — Seal — Necessity — Corporation. — By section 5562 of the Code of 1942, the law as to seals with respect to natural persons has been relaxed, but the same relaxation has not been extended to corporations. The distinction between sealed and unsealed instruments has not been changed.

3. BONDS — Corporations — Necessity for Corporate Seal. — A corporation cannot execute a bond except under its corporate seal.

4. APPEAL AND ERROR — Bonds — Statutory Requirements for Appeal Bonds Mandatory. — The statutory requirements for appeal bonds have always been construed as mandatory, and the exercise of appellate jurisdiction confined to the provisions of the written law.

5. APPEAL AND ERROR — Right of Appeal — Statutory Prerequisites Must Be Observed. — The right of appeal is statutory and the statutory procedural prerequisites must be observed.

6. APPEAL AND ERROR — Review of Trial Justice Judgment — Execution of Appeal Bond by Corporation without Seal — Case at Bar. — In the instant case, an appeal from a trial justice court, defendant, a corporation, gave what it thought was an appeal bond, under section 4987f7 of the Code of 1942, with surety approved by the trial justice. The bond was executed by the president of the corporation, but the corporate seal was not attached or affixed to the instrument. It was contended that there was a substantial compliance by defendant with the Code section, because the executed instrument provided ample security for the payment of any judgment in plaintiff's favor, in that defendant was bound by its written obligation and its surety could not, under sections 284, 285 and 4348 of the Code of 1942, deny its liability.

Held: That there was no merit in the contention of defendant.

7. APPEAL AND ERROR — Review of Trial Justice Judgment — Purpose of Statutes. — The purpose and requirement of the statutes relating to the trial justice system were to do away with the informality and confusion arising under former provisions for appeals from justices of the peace.

8. APPEAL AND ERROR — Review of Trial Justice Judgment — Waiver of Provision Requiring Bond — Case at Bar. — In the instant case, an appeal from a trial justice court, defendant, a corporation, gave what it thought was an appeal bond, under section 4987f7 of the Code of 1942, with surety approved by the trial justice. The bond was executed by the president of the corporation, but the corporate seal was not attached or affixed to the instrument. Defendant contended that a motion to dismiss the appeal for lack of a proper bond was not made in proper time, and that plaintiff waived any objection to the sufficiency of the appeal bond because he had made "a general appearance" after the appeal had been docketed and prior to his motion to dismiss. There was no evidence that plaintiff, or his counsel, discovered the lack of defendant's bond within the ten days in which the appeal was required to be perfected, four of which days had elapsed before the application was made. The case was called for trial in the circuit court and continued for nearly a month, on motion of defendant. No pleadings had been filed by either party nor was issue joined at the time of the continuance. Plaintiff made his motion to dismiss prior to filing a bill of particulars, and not until after the trial court had ruled upon the motion favorably and filed its written opinion on that motion did defendant raise the question of waiver.

Held: That the right to execute a proper appeal bond had become barred when the case was called for trial in the circuit court and continued, and plaintiff ought not to be charged with having waived his right to move for a dismissal of the appeal merely because he undertook to get a date set for a hearing of his case.

9. WAIVER AND ABANDONMENT — Waiver of Legal Right. — A waiver may be generally defined as a voluntary abandonment of some known legal right, advantage, or privilege, or such conduct as warrants an inference of the abandonment of such right, or the intentional doing of an act inconsistent with claiming it, all of which is usually dependent upon the peculiar circumstances of the case.

Error to a judgment of the Circuit Court of Alleghany county. Hon. Earl L. Abbott, judge presiding.

The opinion states the case.

George A. Revercomb, Jr., for the plaintiff in error.

J. W. C. Johnson, for the defendant in error.

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

This proceeding originated in the Trial Justice Court of Alleghany County. In that court, on July 23, 1942, after a hearing on the merits, R. C. Woods, trading as Covington News Agency, hereinafter referred to as the plaintiff, recovered a judgment against the Covington Virginian, Inc., defendant, in the sum of $626.53 and costs. On July 27, 1942, an appeal was applied for by the defendant, who paid the writ tax, and gave what he thought was an appeal bond, with surety approved by the trial justice. The case was sent on to the circuit court.

The written instrument, purporting to be the appeal bond, was executed on behalf of the defendant, a corporation, by its president as follows: "The Covington Virginian, Inc. By Richard F. Beirne, Pres.," and by a corporate surety under its corporate seal. The corporate seal of the defendant was not attached or affixed to the instrument. During these proceedings the defendant was not represented by counsel.

The case was duly docketed in the Circuit Court of Alleghany county, where it was set for trial on November 6, 1942. On that date the parties appeared by their respective counsel, and on motion of the defendant, the plaintiff was required to file a bill of particulars on or before November 20, 1942. On motion of the plaintiff, the defendant was required to file its grounds of defense on or before December 15, 1942. At the request of the defendant, the case was continued to January 13, 1943.

On November 20th, before issue was joined, and prior to filing his bill of particulars, the plaintiff moved that the appeal be dismissed on the ground that the defendant had not given an appeal bond in accordance with the statutory requirements. The defendant contended that the written instrument was a sufficient bond, in that it substantially complied with the statutes, and that the plaintiff was fully protected thereby.

The trial judge rendered a written opinion, setting forth his reasons for sustaining the motion of the plaintiff, dismissing the appeal, and remanding the case to the trial justice court. Before an order to that effect was actually entered, the defendant made a further objection to the motion to dismiss on the ground that the plaintiff had waived the alleged defect in the execution of the appeal bond by making "a general appearance" after the appeal had been docketed and prior to his motion to dismiss. This objection was overruled on February 5, 1943, and on the same day an order was entered in accordance with the opinion of the trial court.

Error is here assigned to both rulings of the trial court upon the grounds above recited.

The requirements for perfecting an appeal from a trial justice court to a circuit court are found in the following sections of Virginia Code, 1942 (Michie):

"Section 4987f7. Applicability to trial justices of laws governing bail, procedure, removal and appeals. — Except as herein otherwise specifically provided, all the provisions of law now in force or which may hereafter be enacted governing granting of bail, procedure and appeals in criminal cases, relating to police justices in cities shall apply in like manner to trial justices appointed hereunder, and all provisions of law now in force or which may hereafter be enacted governing procedure, removal and appeals in civil cases relating to civil and police justices and civil justices in cities, shall apply in like manner to trial justices appointed hereunder; * * * there shall be an appeal of right to the circuit court of the county, or the corporation court of the city, wherein said judgment was rendered, * * * but no such appeal shall be granted unless and until the party applying for the same shall give bond, with sufficient surety, to be approved by the trial justice, to abide the judgment of the court upon the trial of said appeal, it such appeal be perfected, * * * provided, however, that in lieu of giving bond as hereinabove provided, any such appellant may deposit with the trial justice, * * * such sums of money as the trial justice may estimate to be sufficient to discharge such judgment as may be rendered by the appellate court on the trial of the appeal, * * *."

Section 3106 of the Code, governing appeals from civil and police justices, provides as follows: be granted unless within ten days from the date of the judgment from which the appeal is sought the party applying for the same shall have given bond, with sufficient surety, to be approved by the said civil and police justice, to abide the judgment of the court upon the appeal, if such appeal be perfected, * * *."

"Section 4987p. Certain sections not repealed. — Be it further enacted by the General Assembly of Virginia, That all other acts and parts of acts, both general and special, inconsistent with the provisions of sections 4987a-p be, and they are hereby, repealed to the extent of such inconsistency; * * *."

It will be observed that the language of sections 4987f7 and 3106 is identical in requiring that the party applying for an appeal shall give bond, with surety, etc., while section 4987f7 provides two ways in which an appeal...