Hudson v. Yost

13 S.E. 436, 88 Va. 347, 1891 Va. LEXIS 40

• Court: Supreme Court of Virginia
• Decided: July 23, 1891
• Status: Published

Opinion

Lacy, L,

delivered the opinion of the court.

The bill was filed to enjoin the appellee from selling under a decree of said court a tract of land decreed to be sold by the said court, upon tlie ground that, since the decree was rendered, the court-house of Eland county had been destroyed by fire, and all of the court papers destroyed, and among them the records of the suit in which the said decree had been rendered, and praying that no sale be allowed to take place until the proof had been taken to supply the lost record, and to restrain the sale until the title could be perfected. The decree under which this sale was proposed to be made was rendered at’the April term, 1887, and an appeal had been taken to this court, which had been subsequently dismissed. The defendant answered, admitting and setting forth the destruction of the records in Bland county clerk’s office, and among them the original papers in this case, but asserting that, the case having been appealed to the Supreme Court of Appeals, a certified office copy of the said record was thus preserved, and it was obtained, after some delay, having been for sometime stolen and concealed. But, it being obtained, a certified transcript of the original papers was presented to the court, and taken and held as a sufficient record, being, in fact, complete in all its parts ; when, the cause coming on to be heard upon the said bill and answer, the circuit court of Bland county dissolved the injunction September 30, 1889, and at the April term, 1890, dismissed the bill of the plaintiff, with costs; and from these decrees the plaintiff appealed. The ground of the appeal is that the record of the case has been destroyed by fire, and the same has not been set up by legal and proper proof, and there is a defect in the title. As to the second assignment, it is sufficient to say that this question has been put to rest by the former trial. The case having been fully investigated upon a reference to the commissioner, and his report, and confirmation thereof by the court in a decree which had been brought to this court by appeal, and the appeal dismissed, it is too late to discuss that.

As to the first ground, that the lost record had not been set up in the mode required by law, we will cite the statute (sectiou 3376 of tlie Oocle of Virginia), which is as follows : “ If, in any cause, the original papers therein, or any of them, or the record for or in an appellate court, or any paper filed or connected with such record, be lost or destroyed, the court wherein the case is, or in which it would or ought to he, hut for such loss or destruction, may docket the same; and, on affidavit of such loss or destruction, the case may he proceeded in, heard, and determined upon an authenticated copy of Avhat is lost or destroyed, or proof of the contents thereof, or upon proof of so much of the contents thereof as may enable the court to proceed in, hear, and determine the case, and make such entry, order, or decree therein as if the papers, or any of them, had not been lost or destroyed.” Upon consideration of this statute, the question is divested of any difficulty or doubt whatever, the case in hand being expressly and distinctly provided for. But- it is said the statute has not been complied with, because the record does not disclose an affidavit as to the loss of the original papers. This affidavit is intended by the lawT to prove the loss of the original papers. But in this case the bill alleges the loss of all the originals, and is supported by the affidavit of the plaintiff. The answer admits the loss of the original papers, and alleges the fact, and the answer is supported by the affidavit of the defendant. This is a compliance with the law, and the said certified copies of the original papers were properly admitted by the court, and the case was properly proceeded in, heard, and determined as'if the papers therein had not been lost or destroyed. And there was no error in the said decree, and the same will he affirmed.

Decree affirmed.