RGM Erectors, Inc. v. John L. Fuog, Inc.

By JUDGE F. BRUCE BACH This matter came before the court on the Demurrer filed by Defendants, William Harrell, Mary Anne C. Harrell, Harry A. Huber, and Sharon Anne Huber d/b/a Stoneridge Farm. After hearing argument of counsel and reviewing the pertinent authorities, it is the decision of this court that the Demurrer must be overruled. Defendants base their Demurrer on the ground that Complainant, RGM Erectors, Inc., failed to file with its Bill of Complaint an itemized statement of the account in dispute, verified by an affidavit, as required by Va. Code § 43-22 (1981). Even assuming, but not deciding, that Complainant’s original Bill of Complaint was insufficient under § 43-22, Defendants’ Demurrer must fail. Rule 1:10 provides that objection to a pleading that is required to be accompanied by an affidavit must be made within seven days after the pleading is filed, or objection is waived. Here, service of the Bill of Complaint on Defendants was executed on October 11, 1985, while Defendants did not file their Demurrer until October 28, 1985, a period of more than seven days. Furthermore, Rule 1:10 provides that failure to file a required affidavit may be "cured" by a late filing of the affidavit, so long as it is filed before the court rules upon a motion to strike. Because Complainant filed the required affidavit before this court ruled upon the Demurrer, compliance [284] with § 43-22 is not assailable. Accord, Herbert Brothers v. McCarthy Co., 220 Va. 907 (1980). For the foregoing reasons, Defendants’ Demurrer is hereby overruled.