Hanks v. Lyons , 92 Va. 30 ( 1895 )

Riely, J.,

delivered the opinion of the court.

Section 3211 of the Code of Virginia is as follows:

“ Any person entitled to recover money by action on any contract, may, on motion before any court which would have jurisdiction in an action, otherwise than under section thirty-two hundred and fifteen, obtain judgment for such money after fifteen days’ notice, which notice shall be returned to the clerk’s office of such court ten days before the commencement of the term. A motion under this section, which is docketed under section thirty-three hundred and seventy-eight, shall not be discontinued by reason of no order of continuance being entered in it from one day to another, or from term to term. This section shall not be construed as intended to affect the remedy by motion given by the preceding section.”

The plaintiff in error proceeded under this section in the court below to obtain judgment upon a contract against the defendants in error. The term of the court commenced on March 19, 1894, and the notice was given—not to the first, but to the sixth day of the term. It was served on the defendants on March 7, 1894, and returned to the clerk’s office of the court on the same day. It thus clearly appears that the notice was served on the defendants more than fifteen days before the day on which the motion for the judgment was to be made, and was returned to the clerk’s office of the court more than ten days before the term of the court commenced. The notice was duly placed by the clerk on the docket, as required by section 3378, among the motions and actions matured for the docket at that term of the court. On the day of the term of the court to which the motion was given the defendants moved the court to quash the notice and strike the case from the docket, which motion was sustained by the court. To this judgment a writ of error was awarded by this court.

The ground upon which the defendants based their motion was that the notice was not served fifteen days before the term of the court commenced, it being contended that the notice must not only have been in a condition to be docketed at that term, but also so matured that judgment might be given on the first day of the term.

It is to be observed that the statute authorizes the court to render judgment on motion after fifteen days’ notice, which notice shall be returned to the clerk’s office of the court ten days before the commencement of the term. The statute does not specify that the notice must be served fifteen days before the commencement of the term, nor that it must be given to the first day of the term. If this was the intention of the Legislature, it would have been easy to say so. If it intended that the notice should be matured for judgment as well as for the docket before the term, it would have been easy so to declare. But no such intention is expressed in the statute, nor does it contain anything from which such intention can be inferred. The plaintiff in the notice complied literally with the provisions of the statute, and was entitled under his notice to move the court on the sixth day of the term for judgment against the defendants. The court plainly erred in quashing the notice and striking the case from the docket.

The case of Hale v. Chamberlain, 13 Gratt. 658, which was relied on by counsel for defendants in error, does not sustain his contention. In that case the court held that the notice could not be matured during the term, but that it “ must be in a condition to be docketed before the term to authorize the court to give judgment at that term.” 13 Gratt. 663. It is plain from the reasoning of Judge Allen, who delivered the opinion of the court, that it did not mean that the notice must be so matured before the term as that judgment could be given on the first day of the term, but simply that it must be matured for the docket before the term, by being served and returned within the time prescribed.

Section 3378 of the Code, which is the same as when the case of Hale v. Chamberlain, supra, was decided, directs that before every term of a Circuit Court, and before every term of a Corporation Court designated for the trial of civil cases in which juries are required, the clerk shall make out. a docket of the following cases pending, to-wit: First, cases of the Commonwealth ; second, motions and actions in the order in which the notices of the motions were filed, or in which the proceedings at rules terminated, docketing together as new cases those not on the docket at the previous term.

The clerk, as is seen, is required to make out the docket before the term; and a notice like the one in question, in order that it may be heard at that term, must be in condition to be docketed before the term. In the case of Hale v. Chamberlain, supra, the notice was not only not returned before the term, but was not even served until after the term began. It could not therefore be put on the docket at that term, and the court necessarily held that it could not be heard at that term. But in the case at bar the notice had been served and returned and filed by the clerk on March 7, 1894, which was more than ten days before the commencement of the term,, It was, therefore, in a condition to be docketed before the term, and, when docketed, it was a case pending in the court for a hearing on the day to which the notice was given. The two cases are wholly unlike, and the principle of that decision cannot govern this case.

Bor the foregoing reasons, the judgment of the Circuit Court must be reversed, and the said notice of the plaintiff in error reinstated on the docket for trial.

Reversed.