Siford v. Cooley

17 Va. Cir. 73, 1989 Va. Cir. LEXIS 189

• Court: Fairfax County Circuit Court
• Decided: February 10, 1989
• Docket: Case No. (Law) 66613
• Status: Published

Opinion

By JUDGE QUINLAN H. HANCOCK

The issue before the Court is whether the provision for reinstatement of a discontinued case under § 8.01-335 of the Code requires that the reinstatement order be entered within one year or only that the motion to reinstate be filed within a year.

Even though there are no cases directly on point, I have considered argument of counsel and the authorities cited.

In Snead v. Atkinson, 121 Va. 182, 92 S.E. 835 (1917), the Virginia Supreme Court stated, quoting Echols v. Brennan, 99 Va. 150, 37 S.E. 786 (1901), "a cause stricken from the docket under that statute cannot be reinstated after the lapse of one year, except- by consent of all parties." (Emphasis added.) 121 Va. at 186. In that case, however, nearly eleven years had passed before suit was filed to reinstate the cause. In Echols, supra, four years had passed after dismissal of the suit before the cause was reinstated. The court held the reinstatement invalid because, although two parties consented, a third person not known at the time to be a necessary party had not consented.

In a more recent case, Miller v. Armentrout, 196 Va. 32, 82 S.E.2d 491 (1954), the Virginia Supreme Court noted in a footnote that the trial court had granted a reinstatement when the motion to reinstate was filed one year and one month after the order of dismissal. The Defendant had objected since the motion was not made within the time prescribed by the statute. The court overruled his objection and he appealed, listing this ruling as an assignment of error. Since the court rested its decision on another ground, that question was never addressed.

In comparing this statute to Virginia statutes of limitations on actions, statutes of limitation are more specifically worded to state an action must be commenced within the limitation period. See generally § 8.01-235. To the contrary, this dismissal statute does not state the motion to reinstate must be commenced within the year, but rather that the case must be reinstated within one year. The argument can be made that the legislature has been more specific when it chooses to be, but has not been here. Reading the language as written, the reinstatement is what must occur within the year.