86 Va. 828 | Va. | 1890
delivered the opinion of the court.
There were two trials in the county court. Upon the first trial there was a verdict for the defendants, which, on motion of the plaintiff', was set aside as being contrary to the evidence, whereupou the defendants excepted. At the next trial, a jury being waived, the ease was submitted to the court, which gave judgment for the plaintiff; and this judgment having been afterwards affirmed by the circuit court of Warwick county, the case, on a writ of error, was brought to this court.
The first question to be considered is, has this court jurisdiction of the ease? Its jurisdiction is denied by the defendant in error, because the transcript • of the record is not accompanied by a certificate of the clerk of the circuit court stating that notice of the intention to apply for the transcript was given, as required by sec. 3457 of the Code. That section provides that the person intending to apply for a transcript of the record, with a view to applying for an appeal or writ of error, “ shall notify the opposite party, or his counsel, if either reside in this state, of his intention; and no clerk of any court shall make out and deliver such transcript unless it is made to appear that such notice was given. A certificate of the clerk stating the fact,” it is further provided, “shall, in every case, accompany the transcript when presented to an appellate court or judge.”'
We are of opinion, however, that .these provisions of the statute are directory merely, and hence not designed as a limitation of the jurisdiction of the appellate court. The statute, although it requires a certificate that notice was given, does
This is made more manifest from the sections immediately following. Thus, sec. 3458 provides that in no case shall certain specified portions of the record be copied into the transcript unless the clerk is specially directed in writing so to do; and by sec. 3459 it is provided that where the parties or their counsel cannot agree as to what shall be copied, the question may be referred to the judge of the court in which the case was decided, by whose instructions in the matter the clerk shall be governed.
“In respect to statutes, it has long been settled,” says Judge Cooley, “ that particular provisions may be regarded as directory merely; by which is meant that they are to be considered as giving directions which ought to be followed, but not as so limiting the power in respect to which the directions are given that it cannot be effectually exercised without observing them.” Cooley, Const. Lim., 74. In Rex v. Loxdale, 1 Burr., 447, Lord Mansfield said that there is a known distinction between circumstances which are “ of the essence of a thing required to be done” by an act of Parliament, and clauses merely directory; and the doctrine of this and similar cases was approved in French v. Edwards, 13 Wall., 506, where the court said: “ There
In treating of the same subject,^, learned writer states the rule thus: “When statutes direct certain proceedings to be done in a certain way or at a certain time, and a strict compliance with these provisions of time and form does not appear essential to the judicial mind, the proceedings are held valid, though the command of the statute is disregarded or disobeyed. In these cases, by a somewhat singular use of language,” he adds, “ the statute is said to be directory. In other cases the statute is held to be imperative or mandatory'.” Sedg. St. & Const. Law (Pom. ed.), 316.
The author cites a number of cases in illustration of the rule, among them. Rex v. Inhabts. of Birmingham, 8 B. & C., 29, in which case a statute requiring the consent of the father, if living, to the marriage of a child under age, was held to be directory' only, Lord Tenderden say'ing, “ The language of this section is merely to require consent; it does not proceed to make the marriage void if -solemnized without consent.” So in Cole v. Green, 6 Man. & G., 872, where a paving act authorized commissioners to enter into certain contracts, and provided that the contracts should be signed by the commissioners, it was held that the latter provision was not essential or mandatory, but directory, and, therefore, that a contract signed otherwise than in the manner pointed out, ivas not, on that account, void. So, in a Yeiv York case where a school tax was voted at a meeting of which no notice was given, as required by statute, and afterwards levied, the act ivas held to be directory' merely, and the tax well laid. Marchant v. Longworthy, 6 Hill, 646, affirmed on appeal, 3 Denio, 526.
Tried by this test, the motion to dismiss for want of jurisdiction must be overruled.
Another question is, in what light is the case to be -viewed by this court ? As already stated, there were two trials in the county court, upon the first of which there was a verdict for the defendants, which was set aside, as being contrary to the evidence, and the evidence (not the facts) is certified. The final judgment of the county court, which -was rendered on the 9th of January, 1888, was affirmed in the circuit court on the 5th of Februaiy, 1889. On the last-mentioned day the present Code was in force, section 3484 of which required the plaintiff in error, in cases like the present, to occupy the attitude of a demurrant to the evidence, notwithstanding the verdict on the first trial was in his favor.
That section, however, has been amended by the act approved Februaiy 7, 1890, which requires the appellate-court to look first to the proceedings and the whole evidence on the first trial, and, if there be error in setting aside the verdict on that trial, to set aside and annul all proceedings subsequent to the said verdict, and enter judgment thereon. This is the rule
The rule, however, is of no practical importance in the present case, for the evidence, viewed in any light, shows a clear case for the plaintiff, and, therefore, that the verdict on the first trial was rightly set aside.
The grounds in controversy were duly assigned to the plaintiff' on the 10th of May, 1885, and he held undisputed possession thereof until the entry of the defendants in September, 1886. The grounds are described in the written assignment of the inspector as containing twelve acres, more or less, and bounded as follows: “On the H. W. by Hewport Hews Swash channel; on the H. E. by the oyster grounds of Mr. Darling; on the H. E. by Hewport Hews bar, and on the S. W. by -James river.” The evidence shows, moreover, that the location was actually staked off by the plaintiff, and that the stakes were regularly kept up, although they were occasionally swept away by the winds and tides, and that he planted oysters on the grounds.
It does not appear, however, nor is it pretended, that he paid to the state more than one year’s rent, and upon this fact the defendants chiefly rely in their petition of appeal. But conceding that no more than one year’s rent was paid, that does not affect the case. The plaintiff was in actual possession when the defendants entered, and that entry being unlawful, he is entitled to recover. The remedy for a forcible or unlawful entry or detainer was designed to protect the actual possession, whether rightful or wrongful, against unlawful invasion,
Besides, if the plaintiff was in default with respect to the payment of rent, that was a question between him and the state, and not one with which the defendants were concerned. But iu point of fact, the entry of the defendants ivas before the rent for the second year became due.
At the trial, the defendants, to maintain the issue on their part, 'introduced in evidence an assignment by the oyster inspector of Warwick county, but the grounds embraced in that assignment are described as being “ opposite the Parrish farm,” whereas the grounds assigned to the plaintiff are opposite what is known as “ the Buck farm.” They also offered in evidence a written receipt dated September 28, 1886, purporting to be a receipt signed by Henry F. Jones, oyster inspector, for rent of thirty acres of oyster grounds, and offered evidence tending to show that these were the grounds in dispute. But the plaintiff objected to the introduction of the evidence, and the objection was sustained.
It does not appear that any assignment, of the grounds mentioned in the receipt was made by Jones to the defendants, and it is certain his receipt, even if he were a duly qualified officer, which is denied, could not affect the title or the right of possession of the plaintiff. Hurst v. Dulaney, 84 Va., 701. The evidence was, therefore, rightly excluded, and the judgment affirming the judgment of the county court must be affirmed.
•Judgment aeeirmed.