Tyson v. Scott

Keith, P.,

delivered the opinion of the court.

This suit originated in a petition for a mandamus filed by Clinton Scott and others in the Circuit Court of Northampton county, in which they show that on the 27th of July, 1910, Mrs. Henrietta S. Scherer departed this life after having executed her last will and testament, and after having executed what purported to he a codicil thereto; that oh the 2nd day of August, 1910, the executor named in the will presented the paper to R. W. Nottingham, then clerk of the Circuit Court for the county of Northampton, for probate, and it was accordingly admitted to probate as and for the last will and testament of Mrs. Scherer; that petitioners are devisees under- the will and but for the codicil would be entitled to share in testatrix’s estáte as devised therein; that within one year from the probate of the will and alleged codicil, to-wit, on the 10th day of October, 1910, petitioners, except Clinton Scott and Bettie J. Scott, filed in the Circuit Court of Northampton county a bill in equity to impeach the said will and codicil, as provided in section 2544 of the Code of Virginia. Under this bill issues were made up as provided by law, and four trials by jury were had to ascertain whether any, and, if any, how much of the alleged codicil was the will of the decedent. At the last trial the jury returned a verdict as follows: “We, the jury, upon the issue submitted to us, find that the paper writing dated the____day of September, A. D., 1895, admitted to probate as a codicil to the testamentary paper of Henrietta S. Scherer, dated March 15th, 1881, is not a true and valid codicil to said testamentary paper,” upon which verdict a decree was entered by the Circuit Court of Northampton county, which is filed with the petition as Exhibit No. 3. From that decree an appeal was taken to the Supreme Court of Appeals, which court, in November, 1912, entered a decree reversing the action of the court below and dismissing the bill of petitioners, solely upon the ground that the suit could not be maintained until after an appeal had been taken upon the action of the clerk in admitting the will and codicil to probate, as provided under section 2639-a of the Code. It thus appears that the decree had been entered solely upon the ground that the petitioners had proceeded in the wrong forum and brought the wrong form of action to test the validity of the codicil. “Wherefore your petitioners are advised that they have the right now, under the statute law of Virginia, to appeal from the action of the said clerk of the said court in probating the said will and so-called codicil, as herein-before set forth, within one year after the entry of the decree aforesaid. On the 21st day of January, A. D., iyi3, your petitioners presented and tendered to the said George T. Tyson, clerk of the Circuit Court for the county of Northampton, themselves as principals, and S. James Turlington, and L. Floyd Nock, as sureties, for the purpose of executing a bond, as provided by law, and made application to him to enter an order in his order book allowing an appeal from the order of the said E. W. Nottingham, then clerk of the said court, admitting said will and so-called codicil to probate, and to docket the same as a preferred cause for trial at the next term of the said Circuit Court of Northampton county, and to do such other things as the law requires to be done in order to perfect said appeal. . . .Yet the said George T. Tyson, clerk of the Circuit Court for Northampton county, Virginia, illegally and without authority of law, has refused and still doth refuse to allow your complainants to appeal from the said order admitting said will and so-called codicil to probate, and refuses to enter in his order book an order allowing such appeal and to docket the same for trial at the next term of the said court, as required by law, and refuses to dc any of the things required by law in order for your petitioners to make and perfect their appeal from the order of the said E. W. Nottingham then clerk of the said court admitting the same, to probate. Your petitioners are advised that under the circumstances they have the right to apply to this honorable court for a mandamus to compel the said clerk to allow your petitioners to take an appeal from the said order of the said E. W. Nottingham, then clerk of said court, entered on the 2nd day of August, A. D. 1910, admitting said will and so-called codicil to probate, and to accept the bond which your petitioners have offered, as provided by law, to enter in his order book an order allowing such an appeal, and to docket the same as a preferred canse for trial at the next term of the said Circuit Court of Northampton county, and to do all other things which are necessary or requisite in order for your said petitioners to take and perfect their said appeal.”

To this petition George T. Tyson, clerk of the circuit court was made a party, and he demurred to and answered the petition; and the cause coming on to be heard before the circuit court, and it being agreed by counsel that all of the questions arising upon the demurrer should be heard and considered upon the hearing of the case upon its merits, and the case then being fully heard upon the petition and the exhibits filed therewith, and the answer of the respondent and the exhibits filed therewith, the demurrer, and the arguments of counsel, the court took time to consider thereof; and at a subsequent day an order was entered overruling the demurrer and awarding a writ of mandamus in accordance with the prayer of the petition, directing the clerk to accept the appeal bond tendered, and to forthwith enter in his order book an order allowing an appeal for which petitioners applied on the 23rd day of January, 1913; and to that order a writ of error was allowed by one of the judges of this court.

The section of the Code (2639-a) by virtue of which clerks of the circuit and corporation courts are authorized to admit wills to probate, was before this court in the case of Saunders v. Link, 114 Va. 285, 76 S. E. 327, where it was held, that “An order of a clerk of a circuit court admitting a will to probate ex parte, from which no appeal is taken in the manner prescribed by section 2639-a of the Code (1904), is final and conclusive, and cannot be collaterally attacked. No bill to impeach the will lies under section 2544 of the Code. The latter section applies only to ex parte probates in court, under that section. A clear distinction is drawn in the statutes between an ex parte probate before a clerk, which is provided for by section 2639-a supra, and a probate before a court which is provided for by section 2544, supra.”

In that case a will had been admitted to probate before the clerk of the court, and the parties filed a bill attacking it under section 2544 of the Code. To this bill there was a demurrer, upon the ground that the will had been admitted to probate before the clerk, and no appeal having been iaken as provided by the statute, the sentence was final and was not amenable to collateral attack, and that consequently the circuit court was without jurisdiction to maintain the suit. The court overruled the demurrer and subsequently entered a decree granting the relief prayed for in the bill. From that decree an appeal was allowed, and this court held, as already stated, that the probate before the clerk, from whose order no appeal was taken, was final and conclusive and could not be collaterally attacked.

The precise question was presented to the court with respect to the will of Mrs. Scherer, which had been admitted to probate by the clerk of the Circuit Court of Northampton county. Thereupon a bill had been filed under section 2544, which resulted in a sentence from-which an appeal was taken to this court, which was subsequently dismissed upon the authority of Saunders v. Link, supra. In the mean time more than a year had elapsed, and the right of appeal given by section 2639-a of the Code was barred; and the only question presented by this record is whether or not section 2934, which gives further time when a suit abates or is defeated on some ground not affecting the right to recover, applies and preserves to defendants in error their right of appeal from the order of the clerk admitting the will and codicil in question to probate.

Section 2934 is as follows: “If an action commenced within dne time in the name of or against one or more plaintiffs or defendants abate as to one of them by the return of no inhabitant or by his or her death or marriage, or if in an action commenced within due time judgment for the plaintiff shall be arrested or reversed upon a ground which does not preclude a new action for the same cause, or if there be occasion to bring a new suit by reason of the loss or destruction of any of the papers or records in a former suit which was in due time, or if in any pending cause or in any action or suit hereafter commenced within due time in any of the courts of this Commonwealth the plaintiffs proceed or have proceeded in the wrong forum or bring the wrong form of action or against the wrong defendant and judgment is rendered against the plaintiff solely upon such ground, in every such case, notwithstanding the expiration of the time within which a, new action or suit must otherwise have been brought, the same may be brought within one year after such abatement, or arrest, or reversal of judgment, or loss or destruction, or judgment against the plaintiff, but not after; provided, however, that the time that any such action or suit first brought shall be pending in any appellate court shall not be included in the computation of said year. ’ ’

That part of this section ending.with the comma immediately after the words “same cause,” has already been treated by this court in Dawes v. N. Y. &c. R. Co., 96 Va. 733, 32 S. E. 778 in which the word “action” was held to apply to actions at law only and not to include suits in equity. The case of defendants in error, therefore, must depend upon the construction of the statute beginning with the words “or if there be occasion to bring a new suit by reason of the loss or destruction of any of the papers or records in a former suit which was in clue time, or if in any pending cause or in any action or suit hereafter commenced within due time in any of the courts of this Commonwealth the plaintiffs proceed or have proceeded in the wrong forum or bring the wrong form of action or against the wrong defendant and judgment is rendered against the plaintiff solely upon such ground, in every such case, notwithstanding the expiration of the time within which a new action or suit must otherwise have been brought, the same may be brought within one year” &c.

It may be well to state before discussing the statute, that the whole subject of the probate of wills rests upon and is regulated by statute law, and that the courts in admitting a will to probate are confined to the simple question, whether the paper admitted to probate was the true last will and testament of the deceased, and cannot be extended further, for the jurisdiction of a court to probate is not to ascertain and enforce rights of property, but to establish, preserve and perpetuate an important muniment of title. Coalter v. Bryan; 1 Gratt. (42 Va.) 18; Kirby v. Kirby, 84 Va. 628, 5 S. E. 539; Lambert v. Cooper, 29 Gratt. (70 Va.) 61.

It is also true that the jurisdiction of this court rests wholly upon the written law and can be exercised only in obedience to the Constitution and laws passed in pursuance thereof. Statutes of limitation are deemed statutes of repose, and this conception of such statutes applies with peculiar force to limitations upon the right of appeal. These principles are too elementary to render necessary the citation of authority.

As was well said in Savings, &c. Co. v. Polk, 121 Iowa, 1, 95 N. W. 522 "When the legislature prescribes the method for the exercise of the right of appeal or supervision, such method is exclusive, and neither court nor judge may modify these rules without express statutory authority, and then only to the extent specified. ’ ’

It will be observed that section 2639-a, which confers jurisdiction on clerks to admit wills to probate, provides that any person interested may within one year alter the entry of such an order appeal therefrom as a matter of right upon giving bond as required by law to the court whose clerk has made the order. “ Upon application being made for such appeal, the said clerk shall enter forthwith in his order book an order allowing such appeal and docket the same as a preferred cause for trial at the next term of the court.” Now an appeal, as is well settled in this State, is not the institution of a new suit, but the removal and continuation of an old one.

In Burks on Pleading and Practice, at section 372, it is said: “For practical purposes, though perhaps not technically accurate, we may say that, under existing rules of practice, an appeal lies from a lower to a higher court, and is a continuation of the same case upon the same evidence before the higher tribunal, and the case is simply heard de novo before the higher tribunal. It is a rehearing before the higher court, with no presumptions against the appellant, except in case of doubt, where the decision of the lower tribunal will be affirmed. With this exception, the decision of the lower court has no effect. An appeal lies in a suit in chancery. The party taking the appeal is called the appellant. The defendant to the appeal is called the appellee.

r< A writ of error lies in a common law action or criminal case, and is in the nature of a new suit. It is awarded by a superior to an inferior court of record, and operates to transfer the record of the cáse (but nothing else) to the superior court, where the judgment of the inferior court is reviewed! Upon such review the appellate court either affirms or reverses the judgment of the lower court, and if it reverses, enters such judgment as the inferior court ought to have entered. On a writ of error generally only questions of law are reviewed, in the Federal courts, and in many of the State courts, the findings of the trial courts upon questions of fact are conclusive. ” ■

Tne decisions are to tne same effect.

In Wiscart v. Dauchy, 3 Dall. 321, 1 L. Ed. 619, it is said: “An appeal is a process of civil law origin, and removes a cause entirely; subjecting the fact as well as the law to a review and retrial; but a writ of error is a process of common law origin, and it removes nothing for examination but the law.” See also, Stuart v. Hoffman, 108 Va. 307, 61 S. E. 757; Montana Co. v. Mining Co., 152 U. S. 171, 14 Sup. Ct. 506, 38 L. Ed. 398.

We do not mean that the proceeding authorized by section 2639-a is a suit in chancery, but that it is more nearly similar to a proceeding m chancery than to one at law-—to an appeal and its consequences rather than a writ of error. Between the proceeding authorized by statute and that by appeal from a decree in a suit in chancery there is this point of resemblance, which is determinative of the question under consideration: that in both alike there is a continuation of the same case upon the same evidence, and the case is simply heard de novo in the higher tribunal.

It is not for us to relax or to extend a statute of limitations. It must be construed as it is written, and section 2934, the only statute which can be at all relied upon to give to the defendants in error the relief which they ask, is confined by its terms to the time in which a “new suit’’ must be brought “by reason of loss or destruction of papers or records in a former suit, which was in due time or if in any pending cause or in any action or suit thereafter commenced within due time, in any of the courts of this Commonwealth the plaintiffs proceed or have proceeded in the wrong forum,- or bring the wrong form of action or against the wrong defendant and judgment is rendered against the plaintiff solely upon such ground, in every such case, notwithstanding the expiration of the time within which a new action or suit must otherwise have been brought, the same may be brought within one year.”

By the very terms of the statute the petition does not state a case which it covers. It does not seek to bring a new suit, but by appeal to prolong and continue an old one.

The courts are often placed in positions of great difficulty. On the one hand there is an urgent demand on the part of the public (oftentimes well founded) for the codification of the laws, so that rights and remedies may be concisely and plainly dealt with, fixed and ascertained ; but as soon as such a statute is' passed the courts are besieged with a like urgency to overstep the limits’ prescribed by the letter of the law and to give relief in cases which the statute does not embrace. In the construction of statutes, the courts have but one object, to which all rules of construction are subservient, and that is to ascertain the will of the leenslature, the true intent and meaning of the statute, which are to be gathered by giving to- all the words used their plain meaning, and construing all statutes in pari materia in such manner as to reconcile, if possible, anv discordant feature which mav exist, and make the body of the laws harmonious and just in their operation. Bevond these limits the courts have no power in dealing with rights created, measured, limited and enforced by positive statutes.

We are of opinion that the circuit court erred in awarding the mandamus, and its judgment must be reversed.

Reversed.