Staunton.

#### P. W. Day v. W. A. Grove, I. S. Prichard and G. C. Maynard.

September 17, 1925.

1. Appeal and Error-Bill of Exceptions-Necessity of Bill-Record-Motion to Quash an Execution-Case at Bar-In the instant case, ~ quash an execution on the ground that the judgment was invalid because the original notice of motion, on which the judgment was obtained, did not allege that the note sued on was listed for taxation, there was no bill of exceptions, nor certificate in lieu of the bill of exceptions, nor certificate of the evidence introduced at the trial, nor of the facts proven by the trial judge. The whole record consisted of the notice of motion to quash the execution, garnishee summons and the judgment of the court dismissing the motion to quash. From this record it did not appear what was the date of the note originally sued on, nor when it became due and payable, nor did the date upon which the original action was brought, nor the date of the rendition of judgment

appear. Held: That the question of the validity of the original judgment was not presented in such shape that the appellate court could pass upon

it. 2. Appis~.n Aun Exxoa-Bill of Except'ions-I'Tecessity of Bill-Record- Motion to Quash an E,recuUon-Case at Bar.-The instant case was a motion to quash an execution on the ground that the judg- ment was void, because the note sued upon had not been listed for taxation. There was fIled with the petition for a writ of error what purported to be the record in full in the action by notice of motion for judgment on the note, as well as the testimony of a number of witnesses; but this alleged record, while it was cerlified to by the clerk, was not made a part of the record by bill of exception signed by the judge, nor was it certified by the judge as the evidence adduced before the court in the trial of the instant case; therefore, the Supreme Court of Appeals could not consider, in reviewing the instant case, any evidence introduced or the record in the original

action. 3. Bita OF ExcasTzoNs-Object of Bill of Exceptions-Record.-The very object of a bill of exceptions is to enable a party to spread upon

*551“Sxa *.aseá^mmk*kcS&'KMt id #MÍ^iSt¡MlM#We £m« wtMca^‡bgys|Jg)ftfe£|^él]¡ltj*@iElEStai lo, *'íípMÍ*3f M§BtóSL lo lira a di toI «trooQ, itoo®mÍQ 4. Appeal and *JZmMn*— WqMori id *Quaafi mJxecwlign*— Alleq&Uon *ínatfihe bmi hmmmbA°tístm®*¡teBPA^a&a4^w8Ufit eSE, í)Üi>0^Í<|p»Íl |fewsi»fe&eítHreffcifeltó) l^sli aWexlJudtóík^pte was nothing before the Supreme Cour|;p¿^pgfQlg{ji<j^9|,tigi¿^|||le trial court erred in overruling the motion to* quash -the execution. It was alleged thl?f«d|fiel pfWWftifLd was void because the original • notice of motion upon which the lo ««& i®?ñ*was listed for taxation, but the date of the not^^^j^pp^^JEjpp^^lj.e • of rendition of judgment was not shown. It was ^ptíliQw^)aíKllfel«ipSjd»lái¿tii6|,feb km tfVHsriwj** *íwm* f jjoi ai^gx „ _ . the judgment did not recite that such allegation wis made. Jt.is not shown that the note sued on was owned Hbe^5fimti^^6n ÍIÍW j Sfefeajtefet, @>ií$r tbefá# irfe#£Mi®]a>f tjbdM&efn. OtaMJHB¡¥cannot ict Y,íhHd«fllW! b/tfeiM>fiv|a1Sáí&ur,ír^i,i lo iuioO odi «mwo. * 5. 'Judgments and *JDecbees*— Presumptionin *Favor, oíJvÁwrmnt-T-Presumv-*SQofotoWW lo .i OOXi'S^pgtíP’edürimficíl^ísKiaim^Xl^Si^éméodW.Bigh^íun'tíjtt tfe =■003 orRF^Stsíf^gTíiaPíl appg4%^)cfe^aU^Hfe>^r in the.court belowmustshowit in thev-regular af>íSüoWfe7f^r<W^Manig.<>»au..>o»«r««.a iu->« .**#. *....'*correettíess must prevalí. „ ,

í ít$ & j dtíbW'fWii^t ?éTtítóí®%*J^>I6®aaítb6«áá «Ü#adéBHÍ3á| quash an exeefetídá? ító-tifPt,§sígiíJíeri',or/'i' t;;?aU¡ „*! *¿,-ik*1"

*Affirmed.*

The opinion states' the

*Jas. P. Hart*and *A. L. Hughson,*for the* error.

*,'N SO-H^HtfáÁKWford*aíñd'SSl *Hi*@o ff&,tefe*5 íÍM déffétícfálíiís ■dif eTr'dF/''- ha.í> Wíqqe o.j ád'ghW Síihcnpei bmt yssÍI .uotiaojíJpSí?

*552This is an action by notice of motion to quash an execution issued on a judgment rendered in the Law and Chancery Court for the city of Roanoke in favor of W. A. Grove, I. S. Prichard and G. C. Maynard and against P. W. Day and Y. H. Maynard, for $1,200.00 upon a negotiable note.

The notice of motion is as follows:

> “In the Court of Law and Chancery for the city of Roanoke, Virginia.

> “Notice to Quash Execution.

> *“Prichard and Grove*v. *Day.*

> “To S. D. Shackleford and G. H. Penn, attorneys for the plaintiffs.

> “You are hereby notified that the defendant will move the Court of Law and Chancery for the city of Roanoke, Virginia, on September 1, 1924, at 10 o’clock a. m., to quash the execution issued on the judgment of *Prichard and Grove*v. Day, now in the hands of the sergeant of the city of Roanoke, Virginia, on the grounds that the said judgment is invalid, void, and of no effect because the notice of motion, on which the judgment was obtained, did not allege that the note sued upon was listed for taxation, as provided by statute.

> “Jas. P. Hart and A. L. Hughs *on,*

> “Attorneys for the defendant.

> “Notice of this is accepted by—

> “S. D. Shackelford and G. H. Penn, attorneys for plaintiffs.”

There was also a garnishee summons suggesting that there was a liability upon one R. J. Wright to P. W. Day and requiring Wright to appear and answer the suggestion.

The court having heard the motion to quash the execution on October 3, 1924, entered the following order:

> *553“This day came the plaintiffs, by their attorneys, and the defendant, P. W. Day, by his attorneys, and also came the garnishee in this ease, R. J. Wright, in person, and thereupon the defendant, by counsel, filed his motion to quash the execution issued upon the judgment heretofore obtained by the plaintiffs, W. A. Grove, I. S. Prichard and G. C. Maynard, against the defendants, P. W. Day and V. H. Maynard, the filing of which motion was opposed by the plaintiffs, by counsel, whereupon the execution, the judgment, the note upon which the judgment was obtained and the papers in the notice of motion for judgment in which the judgment was granted being filed as exhibits, and the court having heard the argument of counsel, doth overrule the said motion to quash the execution, and thereupon, the garnishee answered, under oath, that he owed the defendants nothing. To which action of the court in overruling said motion to quash the execution, the defendant, by counsel, then and there excepted. And the defendant, by counsel, indicating his intention to apply to the Supreme Court of Appeals of the State of Virginia for a writ of error and *supersedeas*to the judgment of this court, it is ordered that the operation of this order be suspended for a period of sixty days, upon the defendant, or some one for him, entering into a bond before the clerk of this court, with good security, in the penalty of $2,000.00, conditioned to pay the judgment aforesaid and to pay all such costs and damages as may be awarded against him or incurred by reason of such suspension in ease a writ of error should be refused or not become effective within said sixty days, said bond to be executed within ten days.”

Upon writ of error duly granted, the foregoing judgment is before us for review.

As indicated in the notice of motion above copied, *554IÍ& Íi#5M4 íg&Ftá íffiíSfeffiKpsjft aHegecb^^fiMoid *mmpvÁ anti &k$amá§*WsKPíaíffafetóíi %? |ifiK8í$ÍflSof> ©rfí noqimexíí *bau*bítfeppfWl ^it^A§^í^SB^^í<>jláib%>t§y feéfe Jmn^«M .O -O bn* ímáobSf H^.^sifer^BCP' .wu^í íiPfiM? W¿%0 noiío*. iiohív." oT .'aairiion gin^bneí *m w^kMMH^m§sém&mmm HÁWM^hWi’WmWmáb»*-...a.«’'T“' ij ........ ^. *-A*- .. wjíw «v^ívmvc» V >í»iií fUi w í.»j;“”— roToíWo'?1' TfN ^uK;jW;9’Í ex rS&t nu,OI,« -iot» w.fe4Nfeiii]effi *fmmnmk*liH-otr EW^tfifiv^fiIeFx^- íKSéíBTOA in 1924, when the s^K.te^ftAVftfffeeíiioWaMTVÁrpTiÁTie lo Ihw xíoqTJ ÍSf^P." *°É*iw #te to# »»ti8fims ftoélÉáí Wn *555:ihenote;d(;h©> ácioabove .-ref erredxto ite(pdíredj. süchf/ndíice .©honotibni! td^alEége^áhat dhe-móteVor etfcéh ©widfeaaChlSOi debtsubdCdn kad.beeB-rep.oftedJor taxaiionípidfas&esébd f oríeacitóiM- évery^dM/em1! thfefirst sd^yf.loftíidteuapjííPjí. .r^mteíithdiiplamtiflAwasí/ibwMe^íflrftisaiaeítT^^íaládjret dttired^tbé.iüdgmenbAtoAxe'cite'.tMabs.iaeíafaJrteg'a-lioñ'.it^as made; that no such allegation appeatsdndheInotiee of •motiondahdnmo; stíefct’réeit'aldappéabs;-!!! «thd jüdgnhiejnt, ahdlthat, Ithereforé,;' thé'óhd^menbíiáí ^bids.'-/dt la- then ■argued that the' validating-act above quoted,---whidh was in effect when execution was issued upon the 2 judgment, is unconstitutibnal, :and we -are - asked jO;deelare if so,- and, as a‘necessary ¡sequence} to déclárethe judgment void for the reasons assigned, The¡questioñ.hére sought ¡to be determined- is -not»before! us: in--such shape that we can pass upon it.-- - - . V Vi W.; •>,:,! rt

■ The whole record in thdinstant-case- consists.-,of the notion of motion to quash the execution,-set out above in ‘¡full, r.the garnishee summons ¡and thei^udgmenVpr final order rofsithei court; t- dismissing: the» motion;, to quash, also - quoted'.'in ..full: c The .-garnishee-, summons does not- show .-when- the action was- instituted,- or when the judgment was obtained.!This; record, -aside from: the unsupported allegations ,bf: the- petition,does not show; the date upon which the note; was, executed, when it became due and payable, the- date upon which abtibn -was/brought thereon, ©tithes date ;;bf; rendition of judgment thereondhitheubrigihai action* ¡ no bovi/K? --¡VTheisbrdefj df(T,the',;c6urt;«dt©rruling«the .-motioh- to quashííthe>.,exec.útioBsírefefsí.,toi!theí>@xeGution',fithe judg*-mfentsithe faoipüupohvWhiéhnthe j!U!dgmén-foiwasíj|)ibitai®e.ds, and-the ¡papers arm the/mb ticetpf * motion; for- - judgment, ad -being -filed ias. exhibits in the case^mcanifigvn® doubt, as evidence inx;sappéht9oSíjtkeHm.oti®nifjd-^[lia§h,9ii&u| referenceho;the-ndticérté .qüash-ii-qhotedfa'boydi'reyéals that no exhibits were filed with the notice at all.

*556There is no bill of exceptions as provided by section 6252 of the Code, and there is no certificate in lieu of a bill of exceptions as provided by section 6253 of the Code, making these so-called exhibits part of the record in this case, or certifying to them as the evidence upon which the trial court determined the issue before it and overruled the motion to quash.

[2] It is true that there is filed with the petition for-a writ of error what purports to be the record in full, in the action by notice of motion for judgment on the $1,200.00 note, as well as the testimony of a number of witnesses; but this alleged record, while it is certified •to by the clerk, is not made a part of the record by bill of exception signed by the judge, nor is it certified by the judge as the evidence adduced before the court in the trial of the instant case.

Paragraph (b), section 6253 of the Code, provides: “It shall be sufficient for all the purposes of a review by any appellate court of any action, ruling, order, judgment, or matter, arising in the course of the trial or hearing of a cause, that the *trial judge shall certify*the evidence introduced at the trial or hearing of such cause when a consideration of the evidence may be necessary, in order to a decision upon an appeal of any question involved in such review; but nothing in this section shall be construed to preclude the trial judge from certifying, in lieu of the evidence, the facts proved on the trial or hearing of the cause.”

There is no such certificate here, and, therefore, this court cannot consider, in reviewing this ease, any evidence introduced or the record in the original action by notice of motion for judgment, which is alleged to have been introduced, since there is no certificate of the judge certifying same as required by law.

[3] “The very object of a bill of exceptions is to *557enable a party to spread upon the record the matters that occurred at the trial. Unless this is done the case shows nothing but the process, the pleadings, the verdict and the judgment. 4 Minor’s Inst., 728, 729, 742, 743.” *U. S. Mineral Co.*v. *Camden,*106 Va. 663, 666, 56 S. E. 561, 562, 117 Am. St. Rep. 1028. See also *Turner*v. *Smith,*143 Va. —, 129 S. E. 367, an opinion handed down at this term of this court, in which Judge Campbell discusses the question and cites numerous authorities.

[4] There is nothing, therefore, before this court to indicate that the trial court erred in overruling the motion to quash the execution. The date of the $1,200.00' note is not shown; the date of its maturity is not shown;, the time of the filing of the action by notice of motion is not shown; the date of the rendition of the judgment is not shown. It is not shown that the notice of motion for judgment did not contain the allegation required bylaw, or that the judgment did not recite that such allegation was made. It is not shown that the note sued on was owned by the plaintiff on February 1st, prior to-the institution of the action.

We cannot assume that action was brought while the-statute above referred to was in force—that is, the statute requiring the notice of motion to allege that the note sued on had been reported for taxation, etc. Nor can we assume that the notice of motion for judgment did not contain the required allegation, or that the judgment did not recite that such allegation was made. Neither can we assume that the plaintiffs owned the note sued on on the first day of any February. So far as this court is concerned, we have the judgment of a court of competent jurisdiction dismissing a motion to quash an execution issued upon a judgment rendered upon a note, and there is nothing to show that that. *558¿K|4g^i$,áf3 típjpi^grspd^^Ll^ríiitgíÉfee ^dgE,-ppip.g].§ijiie^.di-f2i;oiM.U J«hsí odd is ¿0110000 j«ddr p&efed ^jj{@.dgra«^{fc ^Ot shpyrn>íbO heririPerneeriV’ EveryoP^iiPl^oMs #£# ,thp qpjsy* jiadrgp;odíPÍP#euffipie'ht Js&f^ftífojeít^deéigíM* 0i,j-E5]:x?Jii *the^ease ^&:}Hapwmhy$üiWM pMeWfwU,*$6 ;,|G;rat^.; (7d Xa-H1^ Judge Burfc§gspeaMftgpfpr,^e'íPtP'pBÍ, eaidb “J&he.judgmept ;pf. ¡a 1 pop^fepfi¡competent} jjarisd*^ ¿tiom is? alw^pí.-.prpspmpd^p he right ¡ipitiletfe epptnanylis shown, and a party in an appellate court,: alleging prror. in the,, epprtriielQWyj.inust sho.yt- it ;in^thé‘regular „way,,or the « presumption, in favor of¿itsscoyrtectnpss!:híu!§it prevail.’* V, a;; (,!'•• ,-N' ."JcNryfy;! *\i fVyrrp*od fCOii The, game, doctrine is laid down in JVeaZe. ,vv *Farmr*hoZf,/?9.ya-, 54;,.andriu the eases there’frefeired tp.-;y f :« ., The principle applies in full force, to the; case cat'han. The. judgment ...of the trial eo.urt, therefore,7? will ,; be affirmed. ¡.-., *>^[p-*1,:;,;; , ¡ *mh*Owu/Ni'sc wh .-y':' .■ - . ' ■ , * . 1 cc •' ’ ■ .. v *-A.ffbTTfLQfl;*;/ iW' c *.*d > C >'• : . "'"W J NV W ,1 ■ .; ;• s f. 'í„t; y v .i he-i '•.r:.'vriXV r';C: eJ.; I'ilhi ! ' *'J'!*-, 5 *>■'*/.'••'■. K T \¿ , c fjCW.c- 'ClíClfj OW -li.'i.i-'/i!. 1'id’" '>cv;'.'i v o.,'icÍC"f ;)V«'.di adj'íí'-'Sd!.; OíU vi't'dj < ■’; *■*' ■; <-C l'.01 .!<..< r. ■' 1C.; ' 'CJC'C'. *1-Í '-mV..*„atf> 1C *-yV< ■»■<{»’> P''"0'i hr.<¡*00 ísoexa OiK-c, tffOfiighni, loi not)on? lo locb’:! yúd !'>r.;vír-!.-íí; aw >"<«01 edt ifidi 10 ,.i!oifeg0Ííe hotLepfA *nirimo*.ioit l>'b .obiurr aaw xtoidsgefk jlaira dmU oriaei áo.«% éfh á'n&uí,#í3í¿ O! berrwo g'ltrinreíq orfi erairaae ow imo mdriatl usl oa .Tuui'rdo’d' *\iu\*lo ia*íñ erft 00 no hoirra aioff ,t- ¿0 inoxiighni oxLl ovjsrf w ^hemeonoo ai tiwoo artíá as od iioidora. js gniaainraih xioidorbahnf, íneísquioo rlO d'tuoa hoTO.bff.ai dxiamghnt n noan heiraai noiiwoexe ne .rfaswp tedt ísiíi wo da od gnMdon ai atadd hffs .edon *&*noqir