Prior to its decision in Jay, both our Supreme Court and this Court have historically dismissed appeals when the mandatory requirements of the Rules have not been adhered to, including those cases in which a transcript, indispensable to the resolution of the issue, had not been filed in the trial court. See Fearon v. Commonwealth, 211 Va. 256, 176 S.E.2d 921 (1970); Crum v. Udy, 206 Va. 880, 146 S.E.2d 878 (1966); Smith v. Commonwealth, 32 Va.App. 766, 531 S.E.2d 11 (2000); Price v. Price, 17 Va.App. 105, 435 S.E.2d 652 (1993); Turner v. Commonwealth, 2 Va.App. 96, 341 S.E.2d 400 (1986). In our view, this practice of dismissing, rather than denying, non-compliant petitions for appeal has always been problematic, since the very nature of the petition process mandated by statute contemplates that unless the petition for appeal is granted, there is no need to act on it in any other way than simply denying the petition.

On appeal, the judgment of the trial court is presumed correct. Steinberg v. Steinberg, 11 Va. App. 323, 326, 398 S.E.2d 507, 508 (1990); Crum v. Udy, 206 Va. 880, 881, 146 S.E.2d 878, 879 (1966). We are not fact finders, and this appeal should not be resolved on the basis of our supposition that one set of facts is more probable than another.

Finally, Smith's argument that his appeal should be dismissed because in prior cases the Court of Appeals and this Court have dismissed appeals for failure to timely file an indispensable transcript is unpersuasive. There is no question that there are cases from this Court and the Court of Appeals that have referred to or directed the dismissal of an appeal because a necessary transcript was not properly before the court. See e.g., Towler v. Commonwealth, 216 Va. 533, 535, 221 S.E.2d 119, 121 (1976); Fearon v. Commonwealth, 211 Va. 256, 257 176 S.E.2d 921, 922 (1970); Crum v. Udy, 206 Va. 880, 881, 146 S.E.2d 878, 879 (1966); Dudley, 204 Va. at 535, 132 S.E.2d at 467; Smith, 32 Va. App. at 772, 531 S.E.2d at 14-15; Williams v. Commonwealth, 7 Va. App. 516, 519, 375 S.E.2d 364, 366 (1988); Barrett v. Barrett, 1 Va. App. 378, 380, 339 S.E.2d 208, 209-10 (1986). However, these cases do not have precedential value or application in this case because the proper disposition of an appeal under the circumstances presented here was not an issue in any case Smith cites. Furthermore, in other cases, the failure to file an indispensable transcript resulted in waiver of the issue associated with the transcript.

The Commonwealth has moved to dismiss the writ of error and supersedeas as having been improvidently awarded for failure of the defendant to comply with Rule 5:1, Sec. 3(e) or (f), relating to the contents of the record on appeal. That Rule provides that the transcript or narrative statement of testimony and other incidents of the trial must be tendered to the judge within 60 days and signed by him within 70 days after final judgment. The requirements of the Rule are mandatory, and failure to comply therewith is fatal to an appeal. Snead v. Commonwealth, 200 Va. 850, 853, 108 S.E.2d 399, 402 (1959); Crum v. Udy, 206 Va. 880, 881, 146 S.E.2d 878, 879 (1966). The final judgment in the case at bar was entered on February 19, 1969.

(4) On appeal, the judgment of the trial court is presumed correct. Crum v. Udy, 206 Va. 880, 881, 146 S.E.2d 878, 879 (1966). The burden is on the party who alleges reversible error to show by the record that reversal is the remedy to which he is entitled.

The burden is upon the party alleging trial court error to show by the record that the judgment was erroneous. See Crum v. Udy, 206 Va. 880, 881, 146 S.E.2d 878, 879 (1966); Glaize v. Glaize, 79 Va. 429, 434 (1884); 1B Michie's Jurisprudence, Appeal and Error Sec. 258 (1986). I. The Pension Fund