Daley v. Commonwealth

Supreme Court of Virginia March 16, 1922

Daley v. Commonwealth, 132 Va. 621 (Va. 1922)

111 S.E. 111; 1922 Va. LEXIS 60

Prentis

Opinion of the Court

Prentis, J.,

delivered the opinion of the court.

[1, 2] John Daley and A. P. Males have each been convicted of selling ardent spirits in violation of the statute. There are six errors assigned in the petition, but they are each based upon bills of exception which are not signed by the judge of the trial court.- He refused .to sign them because they were not tendered within sixty days from the date of the final judgment.

The statute, Code 1919, section 6252, is mandatory, and there being no exceptions in the record before this court, and no reversible error on the face of the record, the judgment of the trial court is presumed to be correct in every respect. Bragg v. Justis, 129 Va. 354, 106 S. E. 335; Harley v. Commonwealth, 131 Va. 664, 108 S. E. 648.

[3,4] There is a memorandum made by the judge to the effect that on the date of such final judgment, the order was not actually spread upon the common law order book of the court, but only a. memorandum thereof made by the clerk in the minute book regularly kept by him in which to note the daily proceedings of the court. The fact that the order was not entered on the order book and signed by the judge on the date of the judgment does not extend the time for *623the preparation and presentation of the bills of exception. It is not the practice in this State, and indeed it would be physically impossible, for the clerk to record all of the orders on the order book immediately, or for the judge forthwith to sign them. The universal practice is that the clerk extends the orders upon the permanent record of the court just as soon as possible, and they are thereafter read in open court and signed as orders of the date when the judgments were pronounced. This practice is recognized by Code 1919, section 5962, which provides, among other things, that “the proceedings of each day shall be drawn up .at large, and read in open court, by the clerk thereof, at the next session of the said court, except those of the last day of a term, which shall be drawn up and read the same day. After being corrected where it is necessary, the record shall be signed by the presiding judge.”

Affirmed.

Reference

Full Case Name: John Daley v. Commonwealth and A. P. Males v. Commonwealth
Cited By: 9 cases
Status: Published
Syllabus: 1. Exceptions, Bill of—Time Within which Bill Must be Tendered for Signature—Code of 1919, Section 6252.—It is proper for the court to refuse to sign bills of exception not tendered within sixty days from the date of the final judgment, as required by section 6252 of the Code of 19.19, which is mandatory. 2. Judgments and Decrees—Sentence and Punishment—Presumption in Favor of Correctness of Judgment or Sentence.—Where there are no exceptions because the bills of exception were not tendered to the judge for signature within sixty days from the date of the judgment, and no reversible error on the face of the record, the judgment of the trial court is presumed to be correct in every respect. 3. Exceptions, Bill of— Time Within which Bill Must be Tendered for Signature—Order not Spread on the Order Booh.—Where, upon the date of a final judgment, the order was not actually spread upon the common law order book, but only a memorandum thereof made by the clerk in the minute book regularly kept by him, the fact that the order was not entered on the order book and signed by the judge on the date of the judgment did not extend the time for the preparation and presentation of the bills of exception under section 6252 of the Code of 1919. 4. Records—Minutes of Court—Order Book—Failure of Clerk to Record Order Immediately.—Tt is not the practice in this State, and indeed it would be physically impossible for the clerk to record all of the orders on the order book immediately, or for the judge forthwith to sign them. The universal practice is that the clerk extends the orders upon the permanent record of the court just as soon as possible, and they are thereafter read in open court and signed as orders of the date when the judgments were pronounced. This practice is recognized by Code 1919, section 5962.