Nelson County v. Hurt

66 Va. Cir. 411, 1997 Va. Cir. LEXIS 738

• Court: Nelson County Circuit Court
• Decided: October 29, 1997
• Docket: Case No. CL97-143
• Status: Published

Opinion

By Judge J. Michael Gamble

I am writing this letter to rule upon the motion to dismiss of the plaintiff. Upon consideration, I grant the motion to dismiss. The Court’s reasons are set forth below.

This is an appeal of a declaration of vicious dog pursuant to § 3-32 of the Nelson County Code. Section 3-32 is based upon the statutory provisions set forth in § 3.1-796.93:1 of the Code of Virginia. The County Ordinance and the enabling state statute provide that an animal warden who has reason to believe that a canine within his jurisdiction is a dangerous dog may apply to the magistrate for a summons requiring the owner to appear before the General District Court. In the instant case, the magistrate issued a summons directing Wayne Hurt, the defendant, to appear before the General District Court of Nelson Court for determination of whether his dogs were dangerous dogs under the ordinance and statute. By Order of July 16, 1997, the General District Court of Nelson County found Mr. Hurt to have vicious dogs. Mr. Hurt appealed this Order to the Circuit Court.

The County of Nelson maintains that the Circuit Court has no appellate jurisdiction to review the determination of whether the dogs were vicious dogs. The County maintains there are no provisions in the Code of Virginia which grant appeal jurisdiction for this determination to the Circuit Court. Pursuant to Article VI, § 1, of the Constitution of Virginia, the General Assembly is granted the power to determine the jurisdiction of the courts of the Commonwealth.

The Court has reviewed the provisions of § 3.1-796.93:1 of the Code of Virginia and the Comprehensive Animal Laws in Chapter 27.4 of the Code of Virginia. There is no appeal right granted from the determination by the General District Court that a dog is dangerous. Thus, this Court finds that there is no appellate jurisdiction granted to this Court to hear the issue which is raised on this appeal. Accordingly, the appeal is dismissed.

Order

For the reasons set forth in its opinion letter dated October 29,1997, the Court doth adjudge, order, and decree that the motion to dismiss by the plaintiffs is granted, and this appeal is dismissed.

The Court doth further adjudge, order, and decree that the temporary injunction entered on September 12, 1997, is dissolved.

The Court doth further adjudge, order, and decree that this matter is remanded to the General District Court of Nelson County for such further proceedings as may be appropriate. This case is now ended and dismissed from the docket of this Court.

The Court directs that the Clerk furnish a certified copy of this Order to Phillip D. Payne, IV, Esq., Commonwealth’s Attorney, and to W. Thomas Berry, Esq., attorney for the defendant.