142 Va. 550 | Va. | 1925
The notice of motion is as follows:
“In the Court of Law and Chancery for the city of Roanoke, Virginia.
“Notice to Quash Execution.
“Prichard and Grove v. Day.
“To S. D. Shackleford and G. H. Penn, attorneys for the plaintiffs.
“You are hereby notified that the defendant will move the Court of Law and Chancery for the city of Roanoke, Virginia, on September 1, 1924, at 10 o’clock a. m., to quash the execution issued on the judgment of Prichard and Grove v. Day, now in the hands of the sergeant of the city of Roanoke, Virginia, on the grounds that the said judgment is invalid, void, and of no effect because the notice of motion, on which the judgment was obtained, did not allege that the note sued upon was listed for taxation, as provided by statute.
“Jas. P. Hart and A. L. Hughs on,
“Attorneys for the defendant.
“Notice of this is accepted by—
“S. D. Shackelford and G. H. Penn, attorneys for plaintiffs.”
There was also a garnishee summons suggesting that there was a liability upon one R. J. Wright to P. W. Day and requiring Wright to appear and answer the suggestion.
The court having heard the motion to quash the execution on October 3, 1924, entered the following order:
*553 “This day came the plaintiffs, by their attorneys, and the defendant, P. W. Day, by his attorneys, and also came the garnishee in this ease, R. J. Wright, in person, and thereupon the defendant, by counsel, filed his motion to quash the execution issued upon the judgment heretofore obtained by the plaintiffs, W. A. Grove, I. S. Prichard and G. C. Maynard, against the defendants, P. W. Day and V. H. Maynard, the filing of which motion was opposed by the plaintiffs, by counsel, whereupon the execution, the judgment, the note upon which the judgment was obtained and the papers in the notice of motion for judgment in which the judgment was granted being filed as exhibits, and the court having heard the argument of counsel, doth overrule the said motion to quash the execution, and thereupon, the garnishee answered, under oath, that he owed the defendants nothing. To which action of the court in overruling said motion to quash the execution, the defendant, by counsel, then and there excepted. And the defendant, by counsel, indicating his intention to apply to the Supreme Court of Appeals of the State of Virginia for a writ of error and supersedeas to the judgment of this court, it is ordered that the operation of this order be suspended for a period of sixty days, upon the defendant, or some one for him, entering into a bond before the clerk of this court, with good security, in the penalty of $2,000.00, conditioned to pay the judgment aforesaid and to pay all such costs and damages as may be awarded against him or incurred by reason of such suspension in ease a writ of error should be refused or not become effective within said sixty days, said bond to be executed within ten days.”
Upon writ of error duly granted, the foregoing judgment is before us for review.
As indicated in the notice of motion above copied,
■ The whole record in thdinstant-case- consists.-,of the notion of motion to quash the execution,-set out above in ‘¡full, r.the garnishee summons ¡and thei^udgmenVpr final order rofsithei court; t- dismissing: the» motion;, to quash, also - quoted'.'in ..full: c The .-garnishee-, summons does not- show .-when- the action was- instituted,- or when the judgment was obtained.!This; record, -aside from: the unsupported allegations ,bf: the- petition,does not show; the date upon which the note; was, executed, when it became due and payable, the- date upon which abtibn -was/brought thereon, ©tithes date ;;bf; rendition of judgment thereondhitheubrigihai action* ¡ no bovi/K? --¡VTheisbrdefj df(T,the',;c6urt;«dt©rruling«the .-motioh- to quashííthe>.,exec.útioBsírefefsí.,toi!theí>@xeGution',fithe judg*-mfentsithe faoipüupohvWhiéhnthe j!U!dgmén-foiwasíj|)ibitai®e.ds, and-the ¡papers arm the/mb ticetpf * motion; for- - judgment, ad -being -filed ias. exhibits in the case^mcanifigvn® doubt, as evidence inx;sappéht9oSíjtkeHm.oti®nifjd-^[lia§h,9ii&u| referenceho;the-ndticérté .qüash-ii-qhotedfa'boydi'reyéals that no exhibits were filed with the notice at all.
It is true that there is filed with the petition for-a writ of error what purports to be the record in full, in the action by notice of motion for judgment on the $1,200.00 note, as well as the testimony of a number of witnesses; but this alleged record, while it is certified •to by the clerk, is not made a part of the record by bill of exception signed by the judge, nor is it certified by the judge as the evidence adduced before the court in the trial of the instant case.
Paragraph (b), section 6253 of the Code, provides: “It shall be sufficient for all the purposes of a review by any appellate court of any action, ruling, order, judgment, or matter, arising in the course of the trial or hearing of a cause, that the trial judge shall certify the evidence introduced at the trial or hearing of such cause when a consideration of the evidence may be necessary, in order to a decision upon an appeal of any question involved in such review; but nothing in this section shall be construed to preclude the trial judge from certifying, in lieu of the evidence, the facts proved on the trial or hearing of the cause.”
There is no such certificate here, and, therefore, this court cannot consider, in reviewing this ease, any evidence introduced or the record in the original action by notice of motion for judgment, which is alleged to have been introduced, since there is no certificate of the judge certifying same as required by law.
“The very object of a bill of exceptions is to
There is nothing, therefore, before this court to indicate that the trial court erred in overruling the motion to quash the execution. The date of the $1,200.00' note is not shown; the date of its maturity is not shown;, the time of the filing of the action by notice of motion is not shown; the date of the rendition of the judgment is not shown. It is not shown that the notice of motion for judgment did not contain the allegation required bylaw, or that the judgment did not recite that such allegation was made. It is not shown that the note sued on was owned by the plaintiff on February 1st, prior to-the institution of the action.
We cannot assume that action was brought while the-statute above referred to was in force—that is, the statute requiring the notice of motion to allege that the note sued on had been reported for taxation, etc. Nor can we assume that the notice of motion for judgment did not contain the required allegation, or that the judgment did not recite that such allegation was made. Neither can we assume that the plaintiffs owned the note sued on on the first day of any February. So far as this court is concerned, we have the judgment of a court of competent jurisdiction dismissing a motion to quash an execution issued upon a judgment rendered upon a note, and there is nothing to show that that.
