Tyson v. Scott

• Decision Date: 12 March 1914
• Citation: 81 S.E. 57,116 Va. 343
• Parties: TYSON, Clerk of Court. v. SCOTT et al.
• Court: Virginia Supreme Court

(116 Va. 343)

81 S.E. 57

TYSON, Clerk of Court.

v.SCOTT et al.

Supreme Court of Appeals of Virginia.

March 12, 1914.

Limitation of Actions (§ 130*)—New Action —Appeal from Clerk s Order — Wills — Probate.

Code 1904, § 2934, provides that, if an action is commenced in due time, and judgment is reversed on a ground which does not preclude a new action for the same cause, or if there be occasion to bring a new suit by reason of the loss or destruction of any of the papers or records in a former suit which was in due time, or if, in a pending suit commencedin due time, plaintiff is found to have proceeded in the wrong forum, or brought the wrong form of action, and judgment is rendered against him on that ground alone, in every such case, notwithstanding the expiration of the time within which a new action must otherwise have been brought, the same may be brought within a year after such abatement, arrest, or reversal of judgment, etc. Held that, where relators instituted proceedings under Code 1904, § 2544, for the impeachment of a will and codicil, and it was held on appeal that the action could not be maintained prior to an appeal taken from the ex parte order of the clerk admitting the will and codicil to probate, as authorized by section 2639a, such appeal was not a "new suit" within section 2934, and hence could not be maintained within a year after the termination of the prior action, notwithstanding the expiration of the time limited for the taking of such appeal originally.

[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. §§ 539, 545, 553-566; Dec. Dig. § 130.*]

Error to Circuit Court, Northampton County.

Petition for mandamus by Clinton Scott against George T. Tyson, Clerk of the Circuit Court of Northampton County, to compel the granting of an appeal from an ex parte order admitting a will and codicil to probate. From an order awarding mandamus, the clerk and others bring error. Reversed.

C. V. Meredith, of Richmond, and Otho. F. Mears, of Eastville, for plaintiffs in error.

Westcott & Turlington, of Accomack, and Jeffries, Wolcott, Wolcott & Lankford, of Norfolk, for defendant in error.

KEITH, P. This suit originated in a petition for a mandamus filed by Clinton Scott and others in the circuit court of Northampton county, in which they show that on the 27th of July, 1910, Mrs. Henrietta S. Scherer departed this life, after having executed her last will and testament, and after having executed what purported to be a codicil thereto; that on the 2d day of August, 1910, the executor named in the will presented the paper to R. W. Nottingham, then clerk of the circuit court for the county of Northampton, for probate, and it was accordingly admitted to probate as and for the last will and testament of Mrs. Scherer; that petitioners are devisees under the will, and, but for the codicil, would be entitled to share in testatrix's estate as devised therein; that, within one year from the probate of the will and alleged codicil, to wit, on the 10th day of October, 1910, petitioners, except Clinton Scott and Bettie J. Scott, filed in the circuit court of Northampton county a bill in equity to impeach the said will and codicil, as provided in section 2544 of the Code of Virginia. Under this bill issues were made up as provided by law, and four trials by jury were had to ascertain whether any, and, if any, how much of the alleged codicil was the will of the decedent. At the last trial the jury returned a verdict as follows: "We, the jury, upon the issue submitted to us, find that the paper writing dated the —— day of September, A. D. 1895, admitted to probate as a codicil to the testamentary paper of Henrietta S. Scherer, dated March 15, 1881, is not a true and valid codicil to said testamentary paper"—upon which verdict a decree was entered by the circuit court of Northampton county, which is filed with the petition as Exhibit No. 3. From that decree an appeal was taken to the Supreme Court of Appeals, which court, in November, 1912, entered a decree reversing the action of the court below and dismissing the bill of petitioners, solely upon the ground that the suit could not be maintained until after an appeal had been taken upon the action of the clerk in admitting the will and codicil to probate, as provided under section 2936a of the Code. It thus appears that the decree had been entered solely upon the ground that the petitioners had proceeded in the wrong forum and brought the wrong form of action to test the validity of the codicil. "Wherefore your petitioners are advised that they have the right now, under the statute law of Virginia, to appeal from the action of the said clerk of the said court in probating the said will and so-called codicil, as hereinbefore set forth, within one year after the entry of the decree aforesaid. On the 21st day of January, A. D. 1913, your petitioners presented and tendered to the said George T. Tyson, clerk of the circuit court for the county of Northampton, themselves as principals, and S. James Turlington and L. Floyd Nock as sureties, for the purpose of executing a bond, as provided by law, and made application to him to enter an order in his order book allowing an appeal from the order of the said R. W. Nottingham, then clerk of the said court, admitting said will and so-called codicil to probate, and to docket the same as a preferred cause for trial at the next term of the said circuit court of Northampton county, and to do such other things as the law requires to be done in order to perfect said appeal. * * * Yet the said George T. Tyson, clerk of the circuit court for Northampton county, Virginia, illegally and without authority of law, has refused and still doth refuse to allow your complainants to appeal from the said order admitting said will and so-called codicil to probate, and refuses to enter in his order book an order allowing such appeal and to docket the same for trial at the next term of the said court, as required by law, and refuses to do any of the things required by law in order for your petitioners to make and perfect their appeal from the order of the said R. W. Nottingham, then clerk of the said court, admitting the same to probate. Your petitioners are advised that, under the circumstances, they have the right to apply to this honorable court for a mandamus tocompel the said clerk to allow your petitioners to take an appeal from the said order of the said R. W. Nottingham, then clerk of said court, entered on the 2d day of August, A. D. 1910, admitting said will and so-called codicil to probate, and to accept the bond which your petitioners have offered, as provided by law, to enter in his order book an order allowing such an appeal, and to docket the same as a preferred cause for trial at the next term of the said circuit court of Northampton county, and to do all other things which are necessary or requisite in order for your said petitioners to take and perfect their said appeal."

To this petition George T. Tyson, clerk of the circuit court, was made a party, and he demurred to and answered the petition; and, the cause coming on to be heard before the circuit court, and it being agreed by counsel that all of the questions arising upon the demurrer should be heard and considered upon the hearing of the case upon its merits, and the case then being fully heard upon the petition and the exhibits filed therewith, and the answer of the respondent and the exhibits filed therewith, the demurrer, and the arguments of counsel, the court took time to consider thereof; and at a subsequent day an order was entered overruling the demurrer and awarding a writ of mandamus in accordance with the prayer of the petition, directing the clerk to accept the appeal bond tendered, and to forthwith enter in his order book an order allowing an appeal for which petitioners applied on the 23d day of January, 1913; and to that order a writ of error was allowed by one of the judges of this court.

The section of the Code (2639a) by virtue of which clerks of the circuit and corporation courts are authorized to admit wills to probate was before this court in the case of Saunders v. Link, 114 Va. 285, 76 S. E. 327, where it was held that: "An order of a clerk of a circuit court admitting a will to probate ex parte, from which no appeal is taken in the manner prescribed by section 2639a of the Code (1904), is final and conclusive, and cannot be collaterally attacked. No bill to impeach the will lies, under section 2544 of the Code. ...