Summary
dismissing appeal based on an untimely petition for appeal
Summary of this case from Whitt v. CommonwealthOpinion
44739 Record No. 820915. Record No. 820916.
January 18, 1985.
Present: All the Justices.
Under Code Sec. 30-5, permitting extension of time for filing pleading for party represented by member of General Assembly to thirty days after session, appeals not filed within this time are barred, there being no provision for a further extension based upon a subsequent special session of the General Assembly.
(1) Pleading and Practice — Statutory Construction — Rules of Court — Supreme Court — Appeals — General Assembly — Party Represented by Member, Etc. — Time Within Which Petition Must be Presented (Code Sec. 8.01-671); Time and Place for Filing Petition for Appeal (Rule 5:24); Continuance or Time for Filing Pleading, Etc. (Code Sec. 30-5) — Code Sec. 30-5 Limits Extension to Thirty Days After Particular Session and No Provision for Extension for Pleading Required to be Filed Prior to Commencement of Session.
(2) Pleading and Practice — Statutory Construction — Rules of Court — Supreme Court — Appeals — General Assembly — Party Represented by Member, Etc. — Time Within Which Petition Must be Presented (Code Sec. 8.01-67); Time and Place For Filing Petition for Appeal (Rule 5:24); Continuance or Time for Filing Pleading, Etc. (Code Sec. 30-5) — Three Month Filing Time Being Jurisdictional, Appeals Were Improvidently Awarded, Appeals Not Having Been Filed Within Time Originally Extended.
Code Sec. 8.01-671 and Rule 5:24 require, with certain exceptions, that a petition for appeal be presented within three months from the rendering of any final judgment. However Code Sec. 30-5, for a party represented by a member of the General Assembly and certain others, in addition to providing as a matter of right for a continuance thirty days prior to a legislative session and thirty days thereafter, and in certain other cases, provides the period required by any statute or rule for the filing of any pleading or the performance of any act thereto shall be extended until thirty days after such session.
In these combined cases, the plaintiffs were represented by a member of the General Assembly. The Trial Court entered final judgment on 24 November 1981, sustaining defendant's pleas of the statute of limitations. The 1982 session of the General Assembly commenced in January 1982. The Supreme Court entered an order extending the time for filing the petition "until thirty days after adjournment of the 1982 regular session." The session adjourned sine die on 13 March 1982. The General Assembly then reconvened in a special one-day session on 21 April 1982. The petition for appeal was filed on 21 May 1982. The time originally had expired on 12 April 1982 but the petition for appeal filed 39 days after the expiration of the time was granted. The defendant filed motions to dismiss for want of jurisdiction.
1. Code Sec. 30-5 limits the extension for filing a petition for appeal to thirty days after a particular session and makes no provision for extending the filing time for a pleading required to be filed prior to the commencement of the session.
2. The time for filing appeals in Code Sec. 8.01-671 and Rule 5:24 being jurisdictional, and the appeal not having been filed within the time originally extended under Code Sec. 30-5, the appeals were improvidently awarded.
Appeal from a judgment of the Circuit Court of the City of Portsmouth. Hon. William H. Oast, Jr., judge presiding.
Appeals dismissed.
William P. Robinson, Jr. (Robinson, Eichler, Zaleski Mason, on brief), for appellant. (Records Nos. 820915 820916).
Palmer S. Rutherford, Jr. (George J. Dancigers; Willcox, Savage, Dickson, Hollis Eley, P.C., on brief), for appellee. (Records Nos. 820915 820916).
We granted plaintiffs in two personal injury cases a combined appeal from judgments sustaining defendant's pleas of the statute of limitations, and defendant filed motions to dismiss for want of jurisdiction. We will state the facts, common to both motions, in the singular.
Under Code Sec. 30-5, a litigant represented by a member of the General Assembly is entitled to a continuance in a court proceeding "during the period beginning thirty days prior to the commencement of the session and ending thirty days after the adjournment thereof", and "[t]he period required . . . for the filing of any pleading . . . shall be extended until thirty days after any such session." The trial court entered judgment November 24, 1981. The 1982 session of the General Assembly convened in January 1982. Because plaintiffs counsel was a member of the General Assembly, we entered an order extending the time for filing the petition for appeal "until thirty days after adjournment of the 1982 regular session". Plaintiff had not filed a petition when that session adjourned sine die March 13, 1982.
However, the General Assembly reconvened in a special, one-day session April 21, 1982, and the petition was filed May 21, 1982. Since this was within thirty days after adjournment of the special session, plaintiff argues that the petition was timely filed. He reasons that the statute extends the filing period for 30 days after the regular session, 30 days prior to commencement of the special session, and 30 days after adjournment of the special session. We disagree.
For purposes of this opinion, we accept plaintiffs contention that Code Sec. 30-5 "makes no distinction between regular and special sessions". But, whether the session is regular or special, the statute authorizes the filing extension for a particular session and limits that extension to "thirty days after any such session." It makes no provision for extending the filing time for a pleading required to be filed prior to commencement of the session. Hence, the order we entered was in accord with the distinction the statute draws between a filing extension and a continuance.
Here, the filing extension authorized for the regular session expired April 12, 1982, and the petition for appeal was not filed until 39 days later. The time for filing petitions for appeal fixed in Code Sec. 8.01-671 and Rule 5:24 is jurisdictional. Vaughn v. Vaughn, 215 Va. 328, 329, 210 S.E.2d 140, 142 (1974); Tharp v. Commonwealth, 211 Va. 1, 2, 175 S.E.2d 277, 278 (1970). We hold, therefore, that this Court is without jurisdiction to consider these appeals on the merits, that the appeals were improvidently awarded, and that the motions to dismiss must be granted.
Appeals dismissed.