Summary
holding that a petitioner failed to properly serve the appeal on all party-respondents because the order appealed from affected the opposing party both individually and in her capacity as administratrix but that certified service had only been completed upon opposing party in her capacity as administratrix
Summary of this case from Monroe v. MonroeOpinion
43120 Record No. 731028.
December 2, 1974
Present, All the Justices.
Appellate Review — Improvidently Awarded — Appeal Not Properly Perfected.
Sole owner of land, by right of survivorship, was sole party in interest to bill for specific performance. Appeal perfected only as to administratrix of estate of decedent joint tenant by entirety who is not a party-respondent in interest. Since appeal was not perfected according to law, it is dismissed as improvidently awarded.
Appeal from a decree of the Circuit Court of Warren County. Hon. Elliott Marshall, judge presiding.
Appeal dismissed.
Henry H. Whiting (Kuykendall, Whiting Costello, on brief), for appellants.
Thomas V. Monahan (Hall, Monahan, Engle, Moahan Mitchell, on brief), for appellee.
Donald W. Vaughn and Frances A. Vaughn, his wife, acquired an option to buy a portion of a tract of land owned by their son Donald W. Vaughn, Jr., and his wife, Carolyn F. Vaughn, as tenants by the entirety. After the son's death, his parents elected to exercise the option. When Carolyn refused to sell, the optionees filed a bill of complaint for specific performance, naming as parties-respondent "Carolyn F. Vaughn, Individually and as Administratrix of the Estate of Donald W. Vaughn, Jr." By letter opinion dated July 30 1973, incorporated by reference in the final decree entered August 27, 1973, the chancellor sustained respondents' demurrer to the bill. The optionees assigned error to that ruling.
Because we hold that as to Carolyn F. Vaughn, individually, the appeal was not perfected according to law, we do not consider the assignments of error.
At the time the bill was filed, Carolyn F. Vaughn, by right of survivorship, was sole owner of the optioned land and as such was the sole party-respondent in interest. In the bill, the subpoena in chancery, and the proof of service, she was named both individually and as administratrix of the estate of her late husband. The same was true in the captions of the demurrer, the bill of particulars as to demurrer, and the letter opinion sustaining the demurrer.
In the captions of other pleadings and the final decree, she was named only as administratrix. Similarly, in the captions of the notice appeal and assignments of error and the petition for appeal and supersedeas she was not named individually. The notice of appeal and assignments of error was addressed to "Thomas V. Monahan, Esquire, attorney for Carolyn F. Vaughn, Administratrix: of the Estate of Donald W. Vaughn, Jr." In the notice certificate appended to the petition for appeal, appellants certified that "Appellee is Carolyn F. Vaughn, administratrix of the estate of Donald W. Vaughn, Jr., deceased."
When the subpoena was served and a general appearance was entered, the chancellor acquired personal jurisdiction over Carolyn F. Vaughn, individually. Carolyn F. Vaughn, individually, was never dismissed as a party-respondent. Carolyn F. Vaughn, individually, was named in the caption of the letter opinion sustaining the demurrer. That letter opinion, incorporated by reference in the final decree, became binding upon Carolyn F. Vaughn, individually, effective with the entry of the final decree on august 27, 1973.
Notice of appeal and assignments of error must he filed "within thirty days after entry of final judgment." Rule 5:6. That rule, like its predecessor, Rule 5:1, 4, is mandatory. Mears v. Mears, 206 Va. 444, 445, 143 S.E.2d 889, 890, (1965). Petitions for appeal must be presented within four months following final judgment. Code 8-463 (Repl. Vol. 1957). That rule is jurisdictional. Tharp v. Commonwealth, 211 Va. 1, 175 S.E.2d 277 (1970). As to Carolyn F. Vaughn, individually, appellants failed to comply with those rules. Carolyn F. Vaughn, administratrix, is not a party-respondent in interest. Since the appeal was not perfected according to law, it is dismissed as improvidently awarded.
Appeal dismissed.