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In the SUPREME COURT of APPEALS of VIRGINIA at Richmond

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In the SUPREME COURT of APPEALS of VIRGINIA at Richmond RULE 14-BRIEFS 1. Form and content& of appellant's brief. The ope11ing brief of the aJJpellanl ( or pet1t1011 for appeal when adopted as the opening brieci) shall comain: (a) A subject index and table oi citations with cases al11hal.Hotically arranged. l itation; Virginia .. a~es must refer to the Virginia Reports and, in addition. may rde, tu other ,orts cr,ntammg such cases. (h) A brief statement of the material proceedings in the lower court the errors assigned, d tl«· questions in\'oh-ed in the apJJeaL ' (c) A clear and concise statement of the iacts, with . eferences to the pages of the n'co:-d ,ere there is any possibility that t11e other side may question t11e statement Where the fact, , controve ed it should be so stated. (d) Argument in support of the position of appellant. The brief shall be signed by at least one attorney practicing in this court, giving his addr~ss . 7'he appellant may adopt the petition for appeal as his opening l:,riet by so sratiug in thr t1t1on, or by giving to opposing counsel written notice of such intt:ntion within five <lays of : receipt by appellant of the printed record, and by filing a copy of such notice with the rk of the court. No alleged error not specified in the or,cning brief or petition for appeal ill be admitted as a ground for argument by appellant on the hearing of the cause. 2. Form and contents of appellee'1 brief. The brief for the appellee shall contain: (a) A subject index and table of citations with cases alphabetically arranged. Citation~ Virginia cases must refer ~o the Virginia Reports and, in ad<lition. may n::fer to other JOrls containing such ca~es. (b) A statement of the case and of the points involved, if the appellee disagrees with : sratrment of appellant. (c) A statement of the facts which are n<'ccssary to correct or amplify the statement in pellant's brief in so far as it is <lt·cm,·d erroneous or inadequate, with appropriate reference the pages of the record. (d) Argument in support of the position of appellee. The brief shall be signed by at least one attorney practicing in this court, giving his address. 3. Reply brief. The reply brief (if any) of the appellant shall contain all the authorities lied on by him, not reft:rred to in his petition or opening brief. ln other respects it shall nform to the requirements for appellee's brief. 4. Time of filing. (a) Ciiil cases. The openii,g brief of the appellant (if there be one addition to the petition for appeal) shall be filed in the clerk's office. within fifteen days ter the receipt by counsel for appellant of the printed record, but in no event less than enty-five days before the first day of the session at which the case is. to be heard. The ie £ of the appellee shall be filed in the clerk's office not later than ten days before the first r of the se~sion at which the case is to be heard. The reply brief of the appellant shall be !d in the clerk's office not latt.>r than the day befort.> the first day of the session at which '! cast.> is to be heard. (b) Criminal Cases. In criminal cases briefs must be filed within tht.> time specified in ·ii cas<'s: provide<l. however, that in those cases in whi<'.h tl1e n:cords ha,·e not been printed d delivered to counsel at least twenty-five days ht'forf' the beginning of the next session oi ~ court, such cases shall be placed at the foot of the ,locket f()r that se~sion of the court, ,! the 1ommonwealth's brief shall be filed at least ten days 1,rior to the calling of the ca,P. d the reply brief for the plaintiff in error not later than ,he dav before the case i< called. (r) Stiprtlatio11 of r01rnse/ as to filing. Counsel for opposing parties may file with thr ,rk a written stipulation changing the t'.me for filing briefs in any case; provided, howe,·er, at all hri,,fs must he filed not later than the day before •11ch c'.l<e i~ to he heard S. Number of copies to be filed and delivered to orposing counsel. Twenty copit'< f'arl1 •,ri1·; sh:ill hC' filed with tht' derk oi the rnurt. ~,,,I :11 11':i<t iwo copit", mailecl or liven•,) to opposing counsel on or before tl1e day on which the brief is filed. 6. Size and Type. Briefs ~hall be nine inches in length and six inches in width, so as conform in dimensions to the printed record, and shall be printed in type not less in si7l", 't1 h, i1d1t antl wicl•h. tl>'.'11 the type in which •h<' record is p; '!!tee!. The record numbrr nf e case and names of counsel shall be printed on the front cover of all briefs. 7. Non-compliance, effect of. ~ne clerk of this court is directed not to receive or file brief which fails to comply with the requirements of this mle. If neither side has filed a oper brief the cause will not he heard. If one of the parties fails to file a propPr brief can not be heard, but the case will be heard t.t· pa-rte upon the argument of the p:irtv hv ,om the brief has been filed. INDEX TO PETITION Page (Record No. 2844) Preliminary Statement ................................ l* Question for Decision . 2* Standard Branch: Statement of the Case . 2* Error Assigned . 6* Argument . 7* Simmons Branch: Statement of the Case . 17* Error Assigned . 18* Argument . 19* Harding Branch : Statement of the Case . 21 * Error Assigned . 21 * Argun1ent ....................................... 22* Conclusion . 23* SUBJECT INDEX TO CITATIONS Appearance and answer Virginia Code, Sec. 6399 . 21 * Attachment levy Burks Pleading & Practice, Third Edition, Sec. 358 . 23* Virginia Code, Sec. 6390 . 23* Virginia Code, Sec. 6416 . 14* Commissioner's reports, weight accorded Roark v. Shelton, 169 Va. 542 ., . 18* Defenses of co-defendants · Burks Pleading & Practice, Third Edition, Sec. 361 . 1O* Virginia Code, Set. 6403 . 10* Relationship, debtor and creditor Dawson Banlz v. Harris, 84 N. C. 206 . 9* Remedies for conversion Detinue Burks Pleading & Practice, Third Edition, Sec. 133 15* McClure Grocery Co., Inc. v. Watson, 148 Va. 601 15* General Booker v. Donohoe, 95 Va. 206 . 12* Sangster v. Commomoealt/z, 17 Gratt. 139 ......... · Trover Burks Pleading & Practice, Third Edition, Sec. 164 .. 13,15* Virginia Code, Sec. 6087 ........................ 13,15* Set-off Co-defendant against plaintiff in attachment ·· A lien v. Hall, 5 Metcalf ( Mass.) 263 . 9* Smith Lumber Co. v. Scott Garbage, etc., 12 N. W. 389, 30 L. R. A. (N. S.) 1185 . 13* Generally Burks Pleading & Practice, Third Edition, Sec. 223, 224 12* Burks Pleading & Practice, Third Edition, Sec. 92 . 11 * Tideu,ater Quarry Co. v. Scott, 105 Va. 160 . 11 * Virginia Code, Sec. 6144 ·.......... ~........ 12* Virginia Code, Sec. 6097a ..... ,. 12* Limited to principal defendant Virginia Code, Sec. 6403 . 1O* Title to personai property Cooley on Torts, p. 426 . 22* 65 C. J. 46 . 22* Ullman v. Biddle, 53 W. Va. 415, 44 S. E. 280 ...... 20,22* Williston on Sales, Second Edition, Vol. 1, Sec. 311 . 22* Wilson v. Rucker~ 1 Call 500, 5 Va. 500 . 20* In The SUPREME COURT OF APPEALS OF VIRGINIA At Richmond THE FIRST NATIONAL BANK OF WAYNESBORO .' ......................... Appellant v. Petition for Appeal and Supersedeas R. H. JOHNSON, Principal Defendant, MARY C. JOHNSON, STANDARD OIL COMPANY OF NEW JERSEY, JAMES S. SIMMONS JR., · trading as Simmons Parts Company, and A. R. HARDING, Co-defendants .................... : . Appellees To the Honorable, the Chief Justice and Associate Justices of the Supreme Court of Appea/,S of Virginia: Your petitioner, The First National Bank of Waynesboro, res­ pectfully represents that it is aggrieved of a final decree of the Circuit Court of Augusta County, entered on the 25th day of October, 1943, whereby the petitioner was denied the right to re.:. cover the sum of $704.16, with interest, attorney's fee, and costs, from the property of R. H. Johnson, principal defendant, in the possession of the co-defendants mentioned. above. PRELIMINARY STATEMENT This' is an attachment proceeding in equity, brought by The First National Bank of Waynesboro, hereinafter called "the bank,' against R. H. Johnson, principal defendant, tenant and filling sta­ tion operator, the Standard Oil Company of New Jersey, landlord, designated in this petition as ·"Standard," A. R. Harding, 2* pur*chaser of Johnson's gasoline station supplies, James S. Simmons, trading as Simmons Parts Company, and Mary C. Johnson, wife of the principal defendant-the last four being co-defendants. In the progress of the case it developed into three branches and will be so presented here. The question for decision on the Standard branch is: Can a landlord, without process of law, re-enter the leased pre- 2 Supreme Court of Appeals of Virginia mises of an absconding tenant, seize and s_ell the tenant's prop­ erty to a new lessee as an attachment is levied thereon, credit the proceeds of sale to rent and other unsecured indebtedness of the tenant, and thereby discharge the tenant's property thus sold of liability in the possession of the co-defendants? The Master Commissioner in his report answered in the nega­ tive, while the Chancellor in his decision on exceptions taken an­ swered in the affirmative. STA TEMENT OF THE CASE STANDARD BRANCH From a transcript of so much of the record as it was agreed was necessary for a full and fair presentation of the questions in­ volved, herewith presented as a part of this petition, the facts, briefly stated, appear as follows: Standard is the owner of a gasoline filling station property ly­ ing and being at the i~tersection of Commerce A venue and 3* *the Jefferson Highway in the Town of Waynesboro, Vir- ginia, which it leased to R.
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