Opinion
37326
January 13, 1938
Present, All the Justices.
1. APPEAL AND ERROR — Record — Payment of Cost of Printing — Typewritten Copies of Record — Sections 3486 and 6357 of the Code of 1936 Construed Together. — Section 3486 of the Code of 1936, requiring payment of the costs of printing the record within sixty days after notice of the amount by the clerk of the Supreme Court of Appeals, and section 6357, authorizing the filing of typewritten copies of the record when appellant is financially unable to pay printing costs, must be construed together.
2. APPEAL AND ERROR — Record — Typewritten Copies of Record — Authority of Clerk to Return Incorrect Copies after Time for Filing — Authority to Receive Corrected Copies Thereafter — Case at Bar. — In the instant case plaintiff in error sought to avail herself of the provisions of section 6357 of the Code of 1936, and filed nine incomplete typewritten copies of the record with the clerk of the Supreme Court of Appeals. At least forty-seven days after the expiration of the period for filing typewritten copies, a tenth copy was delivered to the clerk. Upon finding that the nine copies which had been filed within time were incomplete and incorrect, the clerk returned them, together with the tenth copy, to the clerk of the trial court, and after correction they were returned to the clerk of the Supreme Court of Appeals.
Held: That the clerk of the Supreme Court of Appeals was without authority, after the expiration of the statutory period, to either forward the imperfect copies to the clerk of the lower court for correction or to receive them for filing after such correction.
3. APPEAL AND ERROR — Record — Typewritten Copies of Record — Requirement of Affidavit of Financial Inability Is Mandatory and Jurisdictional. — Section 6357 of the Code of 1936 requires, as a condition precedent to the right to file ten typewritten copies of the record as a substitute for printing it, that plaintiff in error make an affidavit of financial inability which is to be approved by the trial court or judge thereof in vacation and certified to the clerk of the Supreme Court of Appeals, and this requirement is mandatory and jurisdictional.
4. APPEAL AND ERROR — Record — Filing — Dismissal for Failure to Comply with Sections 3486 and 6357 of the Code of 1936 — Case at Bar. — In the instant case plaintiff in error failed to comply with the requirements of sections 3486 and 6357 of the Code of 1936, in that ten copies of the record were not filed with the clerk of the Supreme Court of Appeals within the time required; no affidavit of the financial inability of plaintiff in error was certified to the clerk of the Supreme Court of Appeals; and no complete and true copies of the record were certified as required and filed with the clerk of the Supreme Court of Appeals within the statutory period.
Held: That, if the statutes were legally sound, the Supreme Court of Appeals could not alter or abrogate them by interpretation or construction, and the writ of error must be dismissed.
Error to a judgment of the Hustings Court of the city of Portsmouth. Hon. K. A. Bain, judge presiding. Judgment for defendant. Plaintiff assigns error.
Dismissed.
The opinion states the case.
Fred E. Martin and Venable, Miller, Pilcher Parsons, for the plaintiff in error.
James H. Corbitt and Thomas B. Gay, for the defendant in error.
Comment upon the merits of this case, as revealed by the evidence and the action of the court in its rulings in relation to the issues raised, would be unnecessary since it must be dismissed for the failure of the plaintiff in error to comply with the mandatory provisions of sections 3486 and 6357 of the Code of Virginia, 1936.
The germane provisions of these sections are as follows:
"Sec. 3486. * * * As soon as the case is docketed after the appeal, writ of error, or supersedeas is allowed, the clerk of the said court shall notify the appellant, or his counsel of record, of the amount of such costs, and if the same is not paid within sixty days from the date of such notice the case shall be dismissed, which costs so paid, or secured to be paid, shall be recovered and paid by the parties respectively, as the court shall direct."
"Sec. 6357. * * * Provided, however, if the appellant is financially unable and makes affidavit thereof the same to be approved by the trial court or judge thereof in vacation and certified to the clerk of the Supreme Court of Appeals then in such case the filing with the clerk of the appellate court of ten neatly typewritten, multigraphed, mimeographed, photostatic or carbon copies of the record upon sheets of paper of uniform size to be prescribed by said court, duly certified by the clerk of the court from which the appeal was taken, shall be considered a sufficient substitute for printing such records."
In the case of Jackson v. Jackson, 166 Va. 341, 344, 186 S.E. 50, it was held that the two sections of the Code referred to must be construed together.
The failure of the plaintiff in error to comply with the statutory requirements is embraced in the following omissions:
1. Ten copies of the record were not filed with the clerk of this court within the time required.
2. No affidavit of the financial inability of the plaintiff in error has been certified to the clerk of this court.
3. No complete and true copies of the record have been certified as required and filed with the clerk of this court within the statutory period.
Nine incomplete typewritten copies of the record were filed with the clerk of this court on February 23, 1937. On May 12, 1937, an additional typewritten copy of the record was delivered to the clerk. On January 25, 1937, the clerk of this court notified counsel for plaintiff in error in accordance with section 3486, that the costs of printing the record in the case would amount to $370.00. Such costs were not paid and the plaintiff in error sought to avail herself of the substitute provided by section 6357. It will thus be seen that the sixty day period within which the ten copies of the record must be filed expired on March 26, 1937, and it was not until at least forty-seven days thereafter that the tenth copy was attempted to be filed.
The clerk of this court, upon examination of the nine copies of the record which had been filed within the statutory time, found that they were incomplete and incorrect. He, therefore, returned them with the tenth copy, which had been filed after the statutory filing period had elapsed, to the clerk of the Hustings Court for the city of Portsmouth. On or about the 22nd day of May, 1937, they were returned to the clerk of this court.
We think the contention of the defendant in error that the clerk of this court was without authority, after the expiration of the statutory period, to either forward the imperfect copies to the clerk of the lower court for correction or to receive them for filing after such correction, is sound.
Section 6357 requires, as a condition precedent to the right to file ten typewritten copies of the record as a substitute for printing it, the plaintiff in error to make an affidavit of financial inability which is to be approved by the trial court or judge thereof in vacation and certified to the clerk of this court. This the plaintiff in error utterly failed to do.
These statutory requirements have been held by this court to be mandatory and to be jurisdictional.
This court cannot ignore a solemn legislative enactment. If the statutes are legally sound, in that they cannot be successfully assailed for some adequate cause, constitutional or otherwise, then the court cannot alter or abrogate them by interpretation or construction.
The very recent case of Jackson v. Jackson, supra, citing the cases of Widgins v. Norfolk W. Ry. Co., 142 Va. 419, 128 S.E. 516, 517, and Beale v. Norfolk Southern R. Co., 148 Va. 20, 138 S.E. 502, is conclusive of the points under consideration. It affords very clear and forceful statements of the law.
We are without authority to take any other action here than to dismiss the writ of error.
Dismissed.