Heller v. American Alliance Insurance, 149 Va. 262

149 Va. 262 | Va. | 1928

Burks, J.,

delivered the opinion of the court.

This was an action of assumpsit upon a fire insurance policy on a stock of merchandise. The parties joined issue on the plea of non-assumpsit and the defendant filed three special pleas. Pleas numbers 1 and 2 set up the defense that the plaintiff burned the property and for this offense had been convicted and sentenced to the penitentiary. Plea No. 3 set up the defense that the plaintiff’s claim was barred by the conventional limitation set forth in the policy, that suit should be brought “within twelve months next after the fire.” On motion of the plaintiff the trial court struck out defendant’s plea numbers 1. and 2 but refused to strike out plea No. 3, and thereupon the plaintiff replied specially to plea No. 3, but thereafter, on the motion of the defendant, the court struck out the special replication and the plaintiff declined to make any further replication, and the court gave judgment on the plea for the defendant. Pleas numbers 1 and 2, and the special replication, were each filed by leave of the court, but were afterwards stricken out by the court. “To which action of the court in striking out pleas numbers one and two, the defendant by counsel excepted,” and to its action in striking out the plaintiff’s replication to plea No. 3 the plaintiff excepted. In neither case was any bill of exception taken to the action of the trial court. The ruling on pleas 1 and 2 and on the replication to plea No. 3 stand on the same footing.

“Whatever may have been the views formerly entertained on the subject of the necessity of a bill of exception in such case, it is now well settled in this State that a pleading which has been stricken out by the court is as though it- had never been tendered, unless made a part of the record by bill of exception, or by an express order of the court. It stands on the same footing as a pleading which has been tendered and rejected. It is no longer a court record, and hence cannot be considered on a writ of error. Fry v. Leslie, 87 Va. 274, 12 S. E. 671; Leary v. Briggs, 114 Va. 411, 76 S. E. 907; Turner v. Smith, 143. Va. 206, 129 S. E. 367. This holding is not at all in conflict with Driver v. Southern Ry. Co., 103 Va. 650, 49 S. E. 1000, and Bank of Bristol v. Ashworth, 122 Va. 170, 94 S. E. 469, relied on by tbe plaintiff in error. Indeed tbe last mentioned ease expressly refers to and recognizes tbe authority of Fry v. Leslie, supra, and Leary v. Briggs, supra, but a majority of tbe court were of opinion tbat tbe pleas bad been regularly filed and there bad never been any motion to strike.

Pleas Nos. 1 and 2 and the replication to plea No. 3 are, therefore, not parts of tbe record and cannot be considered. Under Rule 24, however, recently adopted by this court, tbe question here at issue cannot again arise on future trials.

Tbe plaintiff contended tbat tbe provisions of tbe policy tbat “tbe loss shall not become payable until sixty days after tbe notice, ascertainment, estimate and satisfactory proof of tbe loss herein required has been received by tbe co'mpany,” cuts down tbe period within which suit must be brought to less than “one year after loss,” and was void under section 4227 of the Code, and hence the limitation was five years. Tbe defendant took tbe contrary view. Tbe authorities are in conflict. 14 R. C. L., page 1419, section 581, and cases cited. It is immaterial which of tbe limitations is applicable since we have held tbat in no event is tbe plaintiff entitled to recover as be was convicted and served a term in tbe penitentiary for burning tbe property covered by tbe policy. Eagle Star Ins. Co. v. Heller, ante, page 82, 140 S. E. 314. It is conceded tbat both policies were on tbe same property and tbat it was destroyed by tbe same fire. There was tbe same plaintiff in each action, though tbe defendants were different. There could never be a judgment on tbe merits for tbe plaintiff.

Although tbe evidence in tbe instant ease is not certified it was conceded at the bar that, on the merits, it was the same as in Eagle Star Ins. Co. v. Heller, supra, of which we will take judicial notice.

The judgment of the trial court will be affirmed.

Affirmed.