133 Va. 160 | Va. | 1922
delivered the opinion of the court.
This case was heard by the court without the intervention of a jury, and the only error assigned is that the judgment is contrary to the law and the evidence.
There was only one bill of exception in the case, and it is conceded by counsel for the plaintiff in error that the error assigned is dependent upon the validity of this bill of exception.
The judgment complained of was entered on March 29, 1920. The bill of exception was presented to the trial judge for his signature “in the afternoon of May 28, 1920, when court had adjourned, and the judge was about to leave his office,” with the request from the plaintiff’s counsel that the bill of exception be dated not later than May 29, 1920. The bill was so dated. It does not otherwise appear when it was actually signed, nor does it appear when the court adjourned for the term, except that the trial judge certifies that the bill was presented within sixty days after the adjournment of the term. The date of such adjournment is immaterial, as “the sixty days is computed not from the adjournment of the term at which the judgment, by operation of law, becomes final, but from the date of the judgment which becomes final by such adjournment.” Bragg v. Justis, 129 Va. 354,
Section 5 of the Code is on the subject of the construction of statutes, and after the opening paragraph is composed of twenty clauses. The opening paragraph and clause 8 are as follows:
“Section 5. Rules of Construction. — In the construction of this Code and of all statutes the following rules shall be observed unless such construction would be inconsistent with the manifest intention of the legislature.”
“Eighth. Computation of Time. — -Where a statute requires a notice to be given, or any other act to be done, a certain time before any motion or proceeding, there must be that time exclusive of the day for such motion or proceeding, but the day on which such notice is given or such act is done may be counted as part of the time.”
The language of clause 8 is identical with the language of clause 8, section 17, chapter 16 of the Code of 1849, and the opening paragraph is substantially the same in both Codes. It will be observed that section 5, Code 1919, applies only “in the construction of this Code and of all statutes.” It says nothing about deeds, contracts, wills, or other documents, but is restricted to statutes, and in reference to the latter, it applies to all statutes. This rule of construction has been on the statute books of this State, with the brief exception hereinafter noticed, for over three-fourths of a century, and has been repeatedly applied by this court. The legislature of 1916, by an act which went into effect June 16, 1916 (Acts 1916, Ch. 290, p. 508),
“8. Computation of Time. — Unless otherwise provided by the statute or contract under consideration, the time from or after which or within which an act may be done, or the time before or after a given day, shall be computed by excluding the first day and including the last day of the period.” The life of this statute, however, was of short duration as the language of the old section was restored by the Code of 1919, which was enacted in 1918 and went into effect in January, 1920, so that we are remitted to the construction of the old statute.
It is said in the brief for the plaintiff in error that “this subsection does not attempt to treat of acts or notice to be done or given after a court proceeding but only before; and no statute requires a bill of exception to be filed a certain time before any proceeding.” It was argued that because clause 8 of section 5 uses the word “before” and not the word “after” it has no application to the statute which requires bills of exceptions to be filed within sixty days after final judgment, but the argument is not sound. The meaning of the language is the same as if it had declared that the final judgment, which must necessarily have preceded the filing of the bill of exception, must not have been rendered more than sixty days “before” the bill is filed, and such has been the uniform holding of this court.
In Swift v. Wood, 103 Va. 494, 49 S. E. 643, the court had under consideration a statute declaring that notice of the motion for judgment for money under section 3211, Code 1904, must be returned within five days after service. The service was made February 21st, and the return on February 26th. The court again applied the section on the construction of statutes and held that the date of the service should be counted as one of the five days, and that, therefore, the return was not within the time prescribed by the statute.
In Jennings v. Pocahontas Collieries Co., 114 Va. 213,
In Anderson v. Union Bank, 117 Va. 1, 83 S. E. 1080, the court was construing the statute which allowed judgment to be taken “after fifteen days’ notice.” The notice was executed June 9th, and judgment taken June 24th. The court again applied the section on the construction of statutes and held that the day upon which the notice was served was
In hull v. Evans, 96 Va. 1, 30 S. E. 468, there is a dictum to the effect that in counting the year within which an appeal must be taken to this court, the date of the judgment appealed from is not to be counted. The statute there under consideration forbade an appeal if one year had elapsed “since the date of the judgment” appealed from, but the appeal in that case was held too late on other grounds and there is no discussion of the question, whereas • the same court in three out of the four eases above cited discussed the very question now under consideration and carefully considered it and unanimously decided that the first day should be counted. Moreover, not only was the question directly involved and decided after the benefit of all the aid counsel could give them in the other case, but all three of these cases were decided after the decision in Bull v. Evans, supra. The language of the statute is the same now as it was when these cases were decided.
Anderson v. Union Bank, supra, was decided in January, 1915, and at the next succeeding legislature in 1916 the legislature changed the language of section 5, clause 8, so as to exclude the first date or the day on which the process was served or the act done, but the revisors in their report to the legislature in 1918
It was under the influence of this doctrine that the statement was made by this court in School Board v. Alexander, 126 Va. 407, 410-11, 101 S. E. 349. There the final judgment had been entered on the 14th day of February, 1918, and the petition for writ of error was presented on the 14th of February, 1919, but at that time the act of 1916, hereinbefore referred to, was in effect. It is there said “under section 5 of the Code (1904) as it stood until the amendment of 1916, February 14, 1918, would have been counted and the motion (to dismiss) would have been sustained. But under the act of 1916, excluding the date of the judgment, February 14, 1918, was not counted and hence the appeal was within time. The court, however, took precaution to call attention to the change made by the revisors of 1919 in the following language: “Attention, however, is called to the fact that at the late revision of the Code the amendment of 1916 was disapproved and the statute restored to its former reading.” It will thus be observed that three entirely separate sets of judges have construed the applicability of section 5 in the same manner.
In 7 R. C. L. 1003, it is said: “Even though the conclusiveness of its utterances may perhaps be
It is to the interest of the public that there should be stability in the laws by which they regulate their conduct. It may be that this court, as at present constituted, would not, as an original proposition, have construed section 5, clause 8 of the Code as it was construed in the cases cited, but the construction of statutes ought not to vary with every change in the personnel of the appellate court. The construction was a fair and reasonable one, made after full deliberation by courts of very able judges, for whose opinion and judgment we entertain the highest respect. Not only so, this construction repeated three times by a unanimous court, in each instance, has been approved by the legislature of the State on the recommendation of the revisors who were familiar with it, and cannot now be repudiated by this court.
The statute fixing the time within which bills of exception must be filed is a limitation on the right to file them at all, and a restriction upon the powers of the trial court. The right to file them is given by statute and the failure to file them within the time prescribed by law is not a mere form, but a part of the essence of the right conferred. Exporters of Manufacturers’ Products v. Butterworth, 257 U. S.-, 42 Sup. Ct. 331, 66 L. Ed.-. The failure to file them in time is simply a failure to take advantage of a right conferred, and like other such rights is visited with
The remarks of Judge Keith in Thornton’s Case, 113 Va. 736, 739-40, 73 S. E. 481, 482, on the present subject, are pertinent here in view of the number of eases that have recently come before us on defective bills of exception. He said: “We regret that this difficulty is one of such frequent occurrence, and we shall not attempt to fix the responsibility for the omission or further animadvert upon the fact than to say that, while it is a matter of profound regret that such should be the case, we have no choice but to enforce the law as we find it. Those who are not responsible for the administration of justice in accordance with established modes of procedure, easily dispose of such objections by denouncing them as technical, but, while technical, nothing can be of higher importance in the administration of justice than that the record upon which the courts are required to act should be ascertained with certainty and so attested as to leave no doubt of its authenticity, in order that the law pertaining to it may be safely and intelligently declared, and the rights of individuals and of society duly protected.”
A number of cases from other jurisdictions on the subject of the method of computing time have been cited by counsel for the plaintiff in error. It is unnecessary to consider them as we regard the subject as regulated by our own statutes.
Section 6252 of the Code provides that bills of exception may be filed “at any time before final judgment is entered, or within sixty days from the time at which such judgment is entered.” In the instant case the judgment was entered March 29, 1920, and the
We have been asked to reconsider our holding in Bragg v. Justice, supra, especially in view of the fact that the point involved was not argued in that case. It is true that the point was not argued when the ease was submitted, but attention of counsel was called to it before the opinion was rendered, and after it was rendered an elaborate petition for rehearing was filed and the rehearing was refused. In the instant case, it is insisted that the sixty days shall be counted from the date of the adjournment of the term at which the judgment was rendered, and the only additional authorities cited are Winston v. Giles, 27 Gratt. (68 Va.) 537, and Hudgins v. Simon, 94 Va. 659, 27 S. E. 606, but these cases arose when bills of exception could be filed at any time before the adjournment of the term at which final judgment was entered, and are not helpful in construing the language of the present statute. We see no reason to change the holding in Bragg v. Justis, supra.
The writ of error in this case will be dismissed as improvidently awarded.
Dismissed.
Prentts, J., dissenting:
I respectfully dissent from the. conclusions of the majority, not because I wish to discredit any of the previous decisions of this court construing other