Va. Home for Incurables v. Coleman

• Decision Date: 14 March 1935
• Citation: 164 Va. 230
• Court: Virginia Supreme Court
• Parties: VIRGINIA HOME FOR INCURABLES AND SHELTERING ARMS HOSPITAL, PETITIONERS v. FREDERICK W. COLEMAN, JUDGE, RESPONDENT.

Page 230

164 Va. 230

VIRGINIA HOME FOR INCURABLES AND SHELTERING ARMS HOSPITAL, PETITIONERS v. FREDERICK W. COLEMAN, JUDGE, RESPONDENT.

Supreme Court of Virginia, Richmond.

March 14, 1935.

Present, All the Justices.

1. APPEAL AND ERROR — Right of Appeal Not a Vested Right. — It is well settled that the right of appeal is not a vested right, but is subject to legislative control.

2. APPEAL AND ERROR — Jurisdiction of Supreme Court of Appeals — Basis. — The jurisdiction of the Supreme Court of Appeals rests wholly upon the written law, and can be exercised only in obedience to the Constitution and laws passed in pursuance thereof.

3. APPEAL AND ERROR — Benefit of Appeal Is Purely Statutory — Necessity for Strict Compliance with Statute. — The benefit of appeal is a purely statutory right. When parties come to the Supreme Court of Appeals to have reviewed the action of a lower court, their only warrant for doing so is the statute, and its terms must be strictly complied with.

4. EXCEPTIONS, BILL OF — Object of Bill of Exception. — The object of the institution of bills of exception was to enable a party to spread upon the record matters that occurred at the trial, such as the evidence introduced, rulings of the court on the admissibility of testimony, the giving and refusing of instructions, and other matters that do not appear on the face of the record.

5. EXCEPTIONS, BILL OF — Certificate of Exceptions — Section 6253 of the Code of 1930 — Purpose. — Section 6253 of the Code of 1930, providing for certificates of exception in lieu of formal bills of exception and prescribing the forms therefor, was only intended to simplify the procedure and may be used in the place of bills of exception at the option of the exceptor or the court.

6. EXCEPTIONS, BILL OF — Signing — Provisions of Sections 6252 and 6253 of the Code of 1930 Mandatory — Necessity for Affirmative Showing of Tender and Signing in Time — Necessity for Showing Notice. — The provisions of sections 6252 and 6253 of the Code of 1930, prescribing the power of the trial judge to sign certificates and bills of exception, and when and under what circumstances he may do so, are mandatory and it is, therefore, necessary in order for the Supreme Court of Appeals to review the proceedings of the lower court, that it affirmatively appear that the bills or certificates of exception setting forth the proceedings desired to be reviewed have been tendered to the lower court or the judge thereof and signed by him within the time prescribed by the statutes, and it must also affirmatively appear that the statutory requirement of notice to the opposite party or his attorney of the time and place said bills or certificates were to be tendered has been complied with.

7. APPEAL AND ERROR — Rule XXIV of Supreme Court of Appeals — Rule Not to Be Construed as Providing Separate and Additional Method for Certification of Testimony. — Rule XXIV of the Supreme Court of Appeals cannot be construed to provide a separate, independent and additional method for the certification or authentication of a copy or report of testimony and other incidents of a trial for the purpose of review by the Supreme Court of Appeals; that court, in the absence of express constitutional or legislative authority, having no power to adopt a rule enlarging the jurisdiction conferred upon it by the statutes on the subject.

8. APPEAL AND ERROR — Supreme Court of Appeals — Power to Prescribe Rules and Regulations Governing Practice — Sections 5960 and 5960a of the Code of 1930. — While section 5960 of the Code of 1930 authorizes the Supreme Court of Appeals to prescribe the forms of writs and make general regulations for the practice of all the courts of record, the legislature has never empowered said court to adopt or prescribe any rule or regulation which will have the effect of adding to, superseding or repealing any statute, with the exception of the authority conferred by section 5960a of the Code of 1930 to adopt rules and regulations for maturing common-law and chancery causes in the trial courts, and expressly repealing statutes providing rule days when the said rules and regulations are in conflict with such statutes.

9. APPEAL AND ERROR — Rule XXIV of Supreme Court of Appeals — Purpose of Rule. — The obvious purpose of Rule XXIV of the Supreme Court of Appeals was to simplify the proceedings and curtail the record as much as practicable, by dispensing with formal bills and certificates of exception as to each separate ruling of the trial court, in the instances named and classified when it appears by the record or by the authenticated copy of the testimony and incidents of the trial that said rulings were excepted to, the grounds of such exception being also thereby shown with reasonable certainty, as required by Rule XXII.

10. APPEAL AND ERROR — Rule XXIV of Supreme Court of Appeals — Conformity to Sections 6252 and 6253 of the Code of 1930 — Effect of Differences. — Rule XXIV of the Supreme Court of Appeals strictly conforms to the provisions of sections 6252 and 6253 of the Code of 1930, with the exception of the fact that it does not provide that the judge shall endorse on the report of testimony the date on which the same is presented, and does not provide that notice of the time and place of its presentation shall be given the other party, as the statutes require. This, however, does not render the rule in any sense in conflict with the statute, nor render the proceedings under the rule any the less subservient to the statutory requirements.

11. EXCEPTIONS, BILL OF — Tender — Signing — Sections 6252 and 6253 of the Code of 1930 — Rule XXIV of Supreme Court of Appeals — Presentation of Transcript of Testimony on Motion to Set Aside Verdict Is Insufficient — Case at Bar. — The instant case was a petition for a writ of mandamus directing respondent as judge of the circuit court to restore to a transcript of testimony a certificate that the transcript was presented to him before entry of final judgment and signed within seventy days thereafter. A jury, impaneled to try an issue of devisavit vel non, having found certain paper writings to be the true last will of a decedent, respondent, as trial judge, directed counsel to file written arguments in support of and in opposition to a motion to set aside the verdict. With the reply brief filed for the present petitioners, there was presented to and filed with the trial judge a transcript of the testimony. The judge set aside the verdict and entered judgment on October 5. On December 14 counsel for petitioners ascertained that the transcript had not been authenticated or signed by the judge and took the papers to the judge's office where he attached the certificate in question stating that the testimony was presented to him prior to the entry of judgment on October 5 and was signed by him on December 14. After notice, opposing counsel objected to the judge's action because the transcript was not presented within sixty days and because no notice was given counsel. After hearing argument the judge obliterated the certificate and attached a statement that the certificate and signature were refused. Respondent demurred to the petition on the grounds, among others, that petitioners had not complied with either section 6252 or section 6253 of the Code of 1930, nor with Rule XXIV of the Supreme Court of Appeals. Petitioners contended that the transcript was presented to the judge prior to the entry of the judgment and was signed by him within seventy days after judgment, in accordance with Rule XXIV.

Held: That the tender of the stenographic copy of the evidence along with the brief was not such a tender as either the statute or the rule contemplates. To deliver a copy of the report of the evidence to the judge for his use on the motion to set aside the verdict is quite a different thing from tendering said copy to the judge for the purpose of having him sign the same to be made a part of the record to be used on appeal. Respondent therefore was without authority to sign the transcript, it not having been presented for his signature and no notice having been given the opposite party within sixty days from the entry of judgment.

12. JUDGES — Authority to Enter Orders in Given Case — Time of Expiration of Authority. — The authority of a trial judge to enter an order in a given case expires with the adjournment of the term at which final judgment is entered therein, except when extended by statute.

13. EXCEPTIONS, BILL OF — Signing — Signing after Expiration of Time for Presenting — Obliteration of Signature and Certificate After Expiration of Authority to Enter Orders — Harmless Error — Case at Bar. — The instant case was a petition for a writ of mandamus directing respondent, as judge of the circuit court, to restore to a transcript of testimony a certificate that the transcript was presented to him before entry of judgment and signed within seventy days thereafter. A jury, impaneled to try an issue of devisavit vel non, having found certain paper writings to be the true last will of a decedent, the trial judge directed counsel to file written arguments in support of and in opposition to a motion to set aside the verdict. With the reply brief filed for the present petitioners, there was presented to and filed with the trial judge a transcript of the testimony. The judge set aside the verdict and entered judgment on October 5. On December 14 counsel for petitioners ascertained that the transcript had not been authenticated or signed by the judge and took the papers to his office where he attached a certificate stating that the testimony was presented to him prior to the entry of judgment on October 5 and was signed by him on December 14. After notice opposing counsel objected to the judge's action because the transcript was not presented within sixty days and because no notice was given counsel. After hearing argument the judge, on ...