Serrell v. Locke

By JUDGE JOHANNA L. FITZPATRICK This unlawful detainer case was originally heard on October 27, 1989, in the General District Court, at which time judgment was rendered in favor of the Plaintiff in the amount of $2,200. The Defendant then filed a timely notice of appeal on October 30, 1989, with a $6,600 civil appeal bond perfected on November 16, 1989. A Circuit Court trial date of January 11, 1990, was set. Both parties subsequently filed motions which were heard in this Court on December 29, 1989. The Defendant moved to dismiss his appeal; the Plaintiff objected to this dismissal and moved to increase the ad damnum clause to the full amount of the bond. For the reasons stated below, the Plaintiff’s motion is granted, while the Defendant’s is denied. The procedures for appealing civil cases from the General District Courts are set forth at Va. Code § 16.1-106 et seq. The Code does not expressly address the procedures governing dismissal of such appeals, and there is no Virginia case law directly on point. The Court will therefore follow the majority approaches discussed at 5 C.J.S. Appeal & Error § 1351. Withdrawal of appeals require leave [391] of court, and leave may be withheld if the appellee refuses to consent thereto. In this case, the Plaintiff has objected to the withdrawal of this appeal, so the Defendant’s motion to withdraw is denied. The second matter concerns the Plaintiff’s motion to increase the ad damnum clause. Actions appealed from District Courts are tried according to general principles of law and equity, according to normal Circuit Court procedures. § 16.1-114.1. In addition, leave to amend is freely granted under Rule 1:8. The only restriction in this case is that the Plaintiff may not seek to recover an amount which would exceed the District Court’s jurisdiction. See, e.g., Addison v. Salyer, 185 Va. 644 (1946), and Stacy v. Mullins, 185 Va. 837 (1946). The increase sought here is properly within the District Court’s $7,000 limit and is therefore granted.