Opinion
44128 Record No. 800412.
June 12, 1981
Present: All the Justices.
Convict's appointment of a committee to institute a civil suit under Code Sec. 53-307 is a procedural requirement that can be waived by bringing action without first obtaining a committee.
Pleading and Practice — Convicts — Statutory Construction — Powers and Liabilities of Committee (Code Sec. 53-307) — Convict may Waive Appointment of Committee in Civil Litigation by Him.
Subsequent to his criminal conviction and incarceration, the convict instituted an action against the executrices of an estate. The Trial Court sustained their motion to dismiss on the basis that Code Sec. 53-307 deprived the convict of standing to maintain the action. Code Sec. 53-307 provided at the time of the action that ". . . No action or suit . . . shall be instituted by or against such convict after judgment of conviction, and while he is incarcerated." The plaintiff appeals.
Appointment for a convict of a committee to institute a civil suit under Code Sec. 53-307 is a procedural requirement that can be waived. Convicts are not civilly dead and not legally incompetent to transact business. By electing to institute the action against the executrices without the appointment of a committee, the convict waived the procedural provision of the statute applicable to him. Thus the trial court erred in dismissing the convict's action on the basis of Code Sec. 53-307.
Appeal from a judgment of the Circuit Court of Accomack County. Hon. N. Wescott Jacob, judge presiding.
Reversed and remanded
( Pro se, on brief), for appellant.
(Henry P. Custis, Jr.; Ayres, Hartnett Custis, on brief), for appellees.
Case submitted on briefs.
The sole issue in this appeal is whether the trial court erred in dismissing an action filed by the appellant, a convict, on the ground that he could not proceed with the action without the appointment of a committee pursuant to Code Sec. 53-307.
Code Sec. 53-307 (1978 Repl. Vol.) provides in pertinent part:
Such committee may sue and be sued in respect to all claims or demands of every nature in favor of or against such convict, and any other of the convict's estate. . . . No action or suit on any such claim or demand shall be instituted by or against such convict after judgment of conviction, and while he is incarcerated. [Emphasis added.]
In 1980, the General Assembly deleted the second sentence of this section as here italicized. Acts 1980, c. 504. In the same Act the legislature added Code Sec. 53-307.1, which provides that "No action or suit on any claim or demand shall be instituted against such convict after judgment of conviction, and while he is incarcerated except through his committee."
Subsequent to his conviction and incarceration for second-degree murder, Walter D. Cross brought an action in 1979 against Sandra Rhea Sundin and Martha Peppler, individually and in their capacity as executrices of the Estate of Marcia Lane Cross. Alleging that Code Sec. 53-307 deprived Cross of standing to maintain the action, the appellees filed a motion to dismiss, which the circuit court sustained in an order filed on December 18, 1979. Cross, contending he had a constitutional right to petition the courts without the appointment of a committee, then brought this appeal.
Previous to Cross's suit, Peppler and Sundin had filed an action against him. Sundin v. Klein, 221 Va. 232, 269 S.E.2d 787 (1980).
Because we believe this case is governed by Dunn v. Terry, Administratrix, 216 Va. 234, 217 S.E.2d 849 (1975), we find it unnecessary to reach the appellant's constitutional challenge. In Dunn, Charles R. Dunn, III, a prisoner, was sued by an administratrix prior to his incarceration. Although Dunn was represented by counsel in the civil proceedings, the trial occurred during his incarceration, and no committee was appointed for him. After the trial court rendered judgment against him, Dunn claimed that the failure to appoint a committee invalidated the civil judgment rendered against him. Rejecting his argument, we ruled that the appointment of a committee was a procedural provision which could be waived by a prisoner. In support of our holding, we noted that "[c]onvicts are not civilly dead in Virginia" and that Dunn "was not legally incompetent to transact business either before or after his conviction in the criminal case." Id. at 239, 217 S.E.2d at 854. Because Dunn elected to utilize the services of his attorneys and did not move for the appointment of a committee, we concluded that Dunn had waived the procedural provisions of Code Sec. 53-307. Id.
Cross was free to waive the appointment of a committee, if he so desired. Consequently, the trial court erred in dismissing Cross's action on the basis of Code Sec. 53-307.
For the reasons stated, the judgment of the trial court will be reversed and the case remanded for proceedings not inconsistent with this opinion.
Reversed and remanded.