EB Rudiger & Sons, Inc. v. Hanckel-Smith Sales Co.

335 S.E.2d 257 (1985)

E.B. RUDIGER & SONS, INC., Appellant, v. HANCKEL-SMITH SALES COMPANY, INC., Appellee.

Record No. 841895.

Supreme Court of Virginia.

September 25, 1985.

On July 12, 1985, the appellant, E.B. Rudiger & Sons, Inc., was awarded an appeal from a judgment of the Circuit Court of the City of Norfolk. On August 12, 1985, the appellee, Hanckel-Smith Sales Company, Inc., moved to dismiss the appeal on the ground that the appellant had failed to file an appeal bond within 15 days from the date of the Certificate of Appeal, as required by the Certificate and Code § 8.01-676.1(B). On August 16, 1985, the appellant filed the appeal bond.

In a response to the motion to dismiss, the appellant alleges that Rule 5:31 (now Rule 5:24) permits an appellant to correct a defect in an appeal bond within 21 days after the appellee files with the clerk of this Court a statement in writing of the defects in the bond, that the failure to file an appeal bond within the 15-day period is a defect within the meaning of the Rule, and that the defect was corrected in this case by the filing of a bond within 21 days after the appellee filed its motion to dismiss.

Upon consideration whereof, the Court holds that the failure to file an appeal bond within the 15-day period prescribed by Code § 8.01-676.1(B) is not such a defect as may be corrected under Rule 5:31 (now Rule 5:24) but is a jurisdictional defect requiring dismissal of an appeal either upon the appellee's motion or the Court's own motion. Accordingly, the Court grants the appellee's motion and dismisses the petition for appeal.

Because the issue raised by the motion to dismiss recurs with some frequency, this order shall be published in the Virginia Reports.