Gaines v. West Winds, L.P.

45 Va. Cir. 532, 1998 Va. Cir. LEXIS 115

Opinion

By Judge Dennis L. Hupp

This matter came before the Court on Motions Day, May 20, 1998, on the plaintiffs objection in each case to its being removed to this Court from the General District Court of Shenandoah County. Each case was removed by Order of the Shenandoah County General District Court entered on March 26, 1998, purportedly done pursuant to Virginia Code § 16.1-92. That statute requires a General District Court Judge, upon application of any defendant, to remove an action at law where the amount in controversy exceeds $1,000.00 “at any time on or before the return day of the process, or within ten days after such return day, if trial of the case has not commenced and if judgment has not been rendered.”

In each of these cases, the warrant in debt was returnable to the Shenandoah County General District Court on March 2, 1998. The removal order was entered on March 26, 1998, clearly more than ten days beyond the return date.

The Defendant in each case argues that, on March 2, 1998, the presiding judge continued the return date to March 16, 1998, and, hence, the removal order was entered within ten days of the second return date. It seems to me that there can be only one return date, except where process has not been served by the first date and the return date is continued. Where process is served, die first day scheduled is the return day. While the Court may continue the case for scheduling purposes and to do those things which would ordinarily have been done on file return date, the return date itself is not continued.

Counsel do not agree on what actually occurred on March 2, 1998. The Court, especially a Court not of record, speaks through its Orders. Nothing on the papers transferred to this Court from the General District Court reflects a continuance of the return date.

The Defendant’s motion to remand each case back to the General District Court is granted.