l L

re e ,Jr ; of Vi g· ·. 1 ,\'f I , CJWOND

RE C'D ·-

Arrpel .ant

v. ~/'\ UTiH r Z '\ F;·.,.,.suN· PA YNf.j

Raymond L. Ba.rtos, .E-sq. 7246 Wickford Drive Post OfficE: Box 10093 Alexandria, Virginia 22310

Counsel for Appellant

APPENDIX

Afl'JellE>e

Thomas "!.! . Monahall, J: ·~sq. Waiter C .. Tacob, Esq. Ball, Monahan. Engh~. Mahan & Mitchell Attorneys at Law 3 East Market Street Leesbo.rg, Virginia 2207 5

Counsel for Appellee

' ! •

TABLE .Q£. CONTENTS

1. SUMMONS TO LAURITZ N. PAYNE TO ANSWER COMPLAINT FILED

APPENDIX PAGES

AUGUST 17 1 19 76 o • o o o o o • • • o o • • e o o o • o o • o • • e • • • o o • • • o • • • o • • o • • • 1

2. COPY OF $4 8 248.02 CHECK DATED AUGUST 17, 1976 ••••••••••••••• 2

3. COPIES OF NOTES DATED AUGUST 17, 1976 •••o•••••••o••••••····· 3

4. AFFIDAVIT OF HARRIET LEE CAFFEY PAYNE DATED AUGUST 17, 1976 • 4-5

5. APPLICATION FOR REMOVAL AND AFFIDAVIT OF SUBSTANTIAL DEFENSE DATED AUGUST 17, 1976 ••••••••••••• o ••••••••• o ••••• ·• • • • • • • • • • 6

.. 6. GENERAL DISTRICT COURT ORDER TRANSFERRING CASE TO CIRCUIT COURT DATED AUGUST 17, 1976 ··················••o••·········· 7

7. DEFENDANT'S DEMURRER, PLEA OF THE STATUTE OF LIMITATIONS AND PLEA OF THE STATUTE OF FRAUDS DATED SEPTEMBER 1, 1976 ••• 8

8. DEFENDANT'S INTERROGATORIES TO PLAINTIFF DATED SEPTEMBER 1, 1976 ••••••••••••••••••••••••••••••••••••••••••••••••••••• 9-10

9. PLAINTIFF'S ANSWERS TO INTERROGATORIES DATED SEPTEMBER 22, 1976 •••••••••••••••••••••••••••••••••••••••••••••••••••• 11-12

10. PLAINTIFF'S PRAECIPE REQUESTING ARGUMENT ON PLEADINGS AND TRIAL DATE DATED SEPTEMBER 22, 1976 ••••o••·················· 13

11. COURT'S LETTER RULING STATING "PLEA TO THE STATUTE OF LIMITATIONS MUST BE SUSTAINED" DATED OCTOBER 12, 1976 ••••••• 14

12. COURT ORDER STATING DEFENDANT'S PLEA TO THE STATUTE OF LIMITATIONS BE SUSTAINED AND CASE IS DISMISSED DATED OCTOBER 21, 1976 ·························••oooo••••••••••••••••ooooo 15

13o PLAINTIFF'S NOTICE OF APPEAL AND ASSIGNMENTS OF ERROR DATED NOVEMBER 18·, 1976 ••••••••••••••••••••••••••••••••••••••••••• 16

- i -

COMMONWEALTH OF VIRGil\ .

COUNTY OF LOUDOUN J TO-WIT:

TO THE SHERIFF OF SAID COUNTY, GREETING:

In the name of the Commonwealth of Vir-

ginia, I command you to summon ...... ~'lp:"~~~-~·- -~~~- .• .. I:'~.Q~. ~- ~~~~ •..........

. . ~~~~~'- y~~- ............................................................... .

to appear before the Loudoun County General District Court in leesburg, Virginia, on th~

...... -~~ ..... day of ..... ~~~ ........... 19 ~~ ... at ... '~~~- ...... o'clock .... A •. M.,

to answer the complaint of ....... ~~~t?~ -~ -~~Y. ~~m~ ......................... .

upon a claim for money not exceeding Five Thousand Dollars, exclusive of interest, to-wit:

For the sum of$ ... ~--~~-·-~~- ...................... the interest thereon· from ........ : .... .

until paid, attorney's fee, and costs, subject to the foHowing credits: ..... ~~J.l~ ........... .

~~~18rfhote ~~~~~~;:;I·'::· ;:e.~ c:;:.Jhe!:~::.~!·> J~:r;:.~tns copies ot:which are.attached.b.ereto •........................................... , ...... .

and then and there make return of this warrant.

Given under my hand this .............................. day of. ..................... ,

19 ............................... .

• • • • • • • • • 0. 0 •••••••• 0 •• 0 •••• ·, •••••••••••••••• , •••• 0 •••• 0 •• 0 0 0 •••• 0

Deputy Clerk, loudoun County Gen~rol District Court

. ~~~-~-·. -~~~ .1~ .W.~~~~ -~~---~.1~~- :v~,. ~~~~~- .. 'p.q.

- -- --· ....

~

2

AUG 1 1972 ' Ll HAMILTON, VIRGINIA, -----~-f'r------_;_ ____ 19 __ _

---:>..c"""'::......,~=·p:::._-cmhH'-'(JA{""::.!:J!<.lfv.fi-J[.k:_j.:::;_' ____ ,..,. ____ DAYS AFTER DATE---L-~--- PROMISE TO PAY TO

lHi f:/'IHM'-f<S .::.NlJ

S(~~:;~~~~~~JiJL£L~tl~~~~~~~2_--=======::::::::::::::==~~~E:==~~::==~~-DOLLARS . ...... /' 100

VALUE RECEIVED. NEGOTIABL~·~&~·b PAYABLE AT _,. ·'

The Farmers and rchants National Bank o£,.-Bamilton, Hamilton, Va. AND THE ENDORSERS OF THIS NOTa(• VERALLY WAIVE NOTICE OF ITS DISHONOR OR~~~~~~PAYMENT AT MATURITY, AND ALSO FURTHER WAIVE THE PROTEST OF THIS NOT£~ CASE OF ITS NON-PAYMENT AT MATURITY. ~ALSO WAIVE ANY NOTICE OF ANY PROTEST OF THE SAME. IF MADE, AND AGREE TO PA ATTORNEY'S FEE OF 10 PER CENT IN THE fo",ENT THAT THIS NOTE IS PLACED IN THE HANDS OF AN ATTORNEY FOR COLLECTION. .

WE,

HAMIL TON, VIRGINIA, ___ __:.J=:_..:J.;~.:_· _J_/_,__ _____ 19 7 3 ________________ c;L..!· D:::._ __________ DAYS AFTER DATE ____ ...,;....Q=. _____ PROMISE TO PAY TO

100 RECEIVED, NEGOTIABLE AND PAYABLE AT

ts National Bank of Hamilton, Hamilton, Va. WAIVE NOTICE OF ITS DISHONOR OR NON-PAYMENT AT MATURITY, AND ALSO FURTHER ITS NON-PAYMENT AT MATURITY, AND ALSO WAIVE ANY NOTICE OF ANY PROTEST OF THE F~E OF 10 PER CENT IN THE EVENT THAT THIS NOTE IS PLACED IN THE HANDS OF AN

.NOTE, .~CH AS TO THIS DEBT.

3

()(

s/f-{260-IN-n:t.:...:%:__ __

". s /foO-

$ _____ _

DUE~·=a !f 2 I'

NO. 55895 :3. Z• .{).

I I i

AFFIDAVIT

i STATE OF V'IRGINIA I

)

! i COUNTY OF LOUOOUN

) 88 )

i I n II

I! before the udersiped. a Notary Public ill and for the County and State

li aforesaid. HARRIET LEE CAFFEY PAYNE, who. after betac duly sworn li

jj accordblg to law deposed aad stated,

Ji

j! .I

ii li

1 ..

2.

Tbat abe 1s the Plaintiff in the above styled action.

That to the best of her knowledge and beliet the Defendaat is

!i iDdebted unto her ill the amount of $4. 248. 02 plus attorney's fees. i1 ll I! ,I

s. That said amount is due by virtue of monies advanced on June !; [; 12, 19'73 in behalf of the Defendant., Lauritz N. Payne., by the Plaintiff from ll

li her separate estate to retire a certain il1debtedness of the Defendant to the I; li i! Farmers and Merchants National 13ank. Hamilton. Virginia. ;I

i: n \! j!

4. That said iDdebtedness was evidenced by a certain promissory

11 note dated February 1, 1973 which was made to retire a prior note of

i: August 1, 1972.

5. That the Defendant appears as Maker pd the Pla:lntUf was an :J . j; II

ii accommodation party on both notes.

6. That said notes provide for ten percent (lOo/o) attorney's fee for

i; II eolleetion. I'

!i 7. That said $4. 248. 02 is justly due. and the Plaintiff claims II

II interest thereon from the 12th day of June. 1973 plus attorney's fees. I' II p

y'z) aH&(,i4f~~4-,tn ,(SEAL) HARRIET LEE CA Y PAYNE

4

·I I

·I

II ;,

.I! l Subaeribed aad sworn to before me this i I I

II li

II II Notar ::;::;:::;eu C • 1! 7.rf~

II M7 commiaatan eBpine ___ /_:/_/ -_,..,.(_/")__ _/_--.-:;.../_7 c ....... _. _·-___ . ,, l! i: li il li li li jj l: ii !i •' H !j if il II

f1 :I

I! I;

5

APPLICATION FOR REMOVAL AND AFFADAVIT OF SUBSTANTIAL DEFENSE

Comes now Lauritz Nelson Payne, defendant herein,. by

Counsel, and makes application for removal of the above-styled

matter to the Circuit Court of the County of Loudoun, Virginia;

and the affiant, being duly sworn, says as follows:

1. That he is the attorney for the defendant, and that the

amount in controversy exceeds the sum of Five Hundred Dollars

($500.00) exclusive of interest and costs.

2. That the defendant, Lauritz Nelson Payne, has a substan1· iJJ! 1

defense to the plaintiff's claim, To-Wit: that he is not indebt., :I to the plaintiff in any amount.

d")c._-, ~ WHEREFORE, the said defendant hereby tenders ~~ as

costs accrued to the time of removal, as well as writ tax and

costs affixed by law to be paid to

County of Loudoun, Virginia.

STATE OF VIRGINIA COUNTY OF LOUDOUN, to-wit:

I,. &/ldtl.... If)·, ...... Je~~ , a Notary Public in and for t: ,_1

County and State aforesaid, do hereb¥. certify that Walter C.Jacob

Attorney for Lauritz Nelson Payne, subscribed his name in my

presence and made oath that he verily believes the statements

contained in the above Application for Removal and Affidavit of ~

>LL. MoNAHAN, ENGLE Substantial Defense are true to the best of his knowledge and be1 j MAHAN a: MITCHELL

ATTORNEYS AT LAW

LEESBURG, VIRGINIA

IINCHESTER, VIRGINIA

MY COM1-1ISSION EXPIRES:

/ ~I

I 6

.,

0 R DE R

This cause came on this day.to-be heard on the application

f Lauritz Nelson Payne, defendant, by Counsel, for a removal of

this cause to the Circuit Court of~,Loudoun County, Virginia, an l!' ""t1, '\

ffidavit of Substantial Defeki~as argued by Counsel.

And it appearing to the Court that the necessary costs had beE

paid by defendant and that this cause should be removed; it is

THEREFORE ORDERED that this cause is transferred to the Circuit

Court of Loudoun County, Virginia for further proceedings to be

had therein.

ENTER this l h1:tl day of ....,,/it,_'-l&-r-!.~-~ . ..!oo( ..... : )J.."' _·-~\.---_, 19 7 6 •

FOR THIS:

alter Jacob Hall, Monahan, Engle, Mahan & Mitchell Attorneys at Law 3 East Market Street Leesburg, Virginia

THIS IS A CERTIFIED TRUE COPY:

~~;u\:u.:~ Ann S. ·Willingham, nePYcrerk

7

.:-:

AU.. MorW1AN. ENGLE .AHAII • MITCHILL ATTORNEYS AT LAW

UIEIIBURG, V.OINIA

WINCHESTER. VIRGINIA

II

DEMURRER

Comes now the Defendant, Lauritz Nelson Payne, by counsel,

and files this his Demurrer to the Civil Warrant and Affidavit

filed aqainat him and states that it is insufficient in law and

·equity.

PLEA OF THE STATUTE OF LIMITATIONS

Comes now the Defendant, ~ur.ftz Nelson Payne, by counsel,

and files this his Plea of the Statuteof Limitations and states

that the Plaintiff is barred from proceeding in this matter by th

Statute of Limitations.

PLEA OF THE STATUTE OF FRAUDS

Comes now the Defendant, Lauritz Nelson Payne, by counsel,

and files this his Plea of the Statute of 'Frauds and states that.

the Plaintiff

of Frauds.

BALL, MONAHAN, ENGLE, MAHAN Attorneys at Law 3 East Market Street Leesburg, Virginia 22075

Counsel for Defendant

the Statute

LAURITZ NELSON PAllm

sy-4-eoun-.er---·-··-·-····-··· -·-···---

& MITCHELL

C E R T I F I C A T E

I hereby certify that on the ~y of AUCJUSt, 1976, 1 I mailed a true copy of the foregoing urrer, Plea of the , Statute of Limitations and Plea of the Statute of Prauds to Mr. J Raymond L. Bartos, Attorney at Law, 7246 Wickford Drive, Alexandr a; Virginia 22310, Counsel for Plaintiff.

8

IIAUIB'l' LBB'CAPRY ___ PAYRB ..

Plaintiff

va.

LAURrl'Z NBLSON PAYNB

Defe~

To: Harriet Lee Caffey Payne . c/o Ra)'IIOad L. Bartos, her Attorney 7246 WioJcfc4 Drive Alexandria, Virginia 22310

IR'l'BitROGA'l'ORIES

AT LAW NO. 4992

Comes now the Defendant, ~uri t:s Belson Payne, by counae:

anc! files thia his Interroqatoriea, ptarauant to the Rules of

Court, and requests the Plaintiff to answer the followinq in

writing and under oatht

1. State whether you and t:he Defeftdant ever entered intc

a written aqre-nt reqardinq the repayment of the purported lOA&•

that ia the subject of this claim. If so·, please attach a copy

of same wi ttl your responses.

2. Stat:e whether you •ad:. the Defeadaat at any time ma4e

an oral agreement raqardinq the repayment of this loan_

3. -If the answer to N\DIIber 2 in the above is in the

affirmative, state the following:

(a) The date and place suob an agreement was made • •

(b) 'l'he aubataAce of the agreement • . .

(c) Whether there were any witneaaea to the aqre~

if so, state tileir full names, adc!rea... and phone number•.

4. Stan whether you were 11 vi119 t.()98ther as husband .·~ .. · ·:;...:··

wife with the Defendant. whert yoa ao-a1qae4 eitber or llctth td .tiUJI:,

notes.

5. State Whether you war~ livift9 t.opther u Jl~ •

I wife with the Defendant wben you paid off tluJ not:e. ·

9 ---- ·:-.... ~···-.----:--~--·-. ~-----··--

G. lta~e vhetbe~ you ... , made demand for payment: if

. eo, atat.e when said 4811an4 or deaancle vue made and in what

maDDer ..

7. State the ftUleS, addr~ssea and phone n'UIIben of

•ve:r:y pez-son you inuad u, call. at t:he trial of this caae.

WaU. C. Jali-BALL, MONABM, BHGLB, MARAN A~rneya at Law l Basi: Market Street Leeablll!'q, Vlrqtnia 22075

Couaeel for Defendant

LAUJl%'1'1 OLSON PAYNE

By ~oun""'!'i_e,.l----·--·--·--~

& MI'l'CDLL

CBR'l'IPICA'l'B

r hereby aertifr that an .the ~f Au,aat, 1976,

I aailed a t#Ue copy of the foreqoinq Interroqatoriea to Mro

Raymond L. Bartoa, Attorney at Law, 7246 Wickford Drive,

Alele&DdrJ.a, Viqinia 22310, Counsel for Plaintiff.

--~~~~---· ·-----·--·-·--···-·---··

10

ANSWERS TO INTERROGATORIES

Comes now the Plaintiff and in answer to Defendant's Interrogatorie1

states:

1. Yes, see exhibits (1) Promissory Note dated August 1, 1972

and (2) Promissory Note dated February 1. 19'13, attached to Civil Warrant.

2. Yes

3. (a) At our place of residence in Purcellville, Virginia, on o

about (i) August 1, 1972.., (ii) February 1, 1973. and (iii) June 13, 1973.

(b) There were three agreements:

(i) At the request of the Defendant, Lauritz Nelson PaJ

I agreed to become an accommodation party on a Promissory Note issued to

! the Farmers and Merchants National Bank of Hamilton, Virginia for $4, 000 1 ! I

: pay delinquent U. s. withholding taxes owed by the Defendant's company. Th I.

!! Defendant promised me he would pay off the note when it became due. I' i:

(ii) At the request of the Defendant, I again became I

!. accommodation party on a second Promissory Note for $4.161.60 issued to tl

!! Farmers and Merchants National Bank of Hamilton. This note was issued to ,. i! I ~ I

: retire the prior note of August 1, 1972. Defendant promised he would pay th: ;. ,,

!1 note off.

(iii) The Defendant promised to reimburse me if I woul

pay off the note that evidenced the Defendantis indebtedness to the bank with

monies I inherited from my mother.

(c) Not to my knowledge.

4. We were living together.

5. We were living together.

6. Yes, the Plaintiff asked about payment on or about November

111"13: oa or about January30,. 18'74: and on or about August 1, 1975, all

I demands were verbal except this action.

7. At this time only the Plaintiff, Harriet Lee Caffey Payne.

Route 1,. Box 16. Purcellville. Virginia,. Phone Number is 703/338-4860.

(SEAL) HARRIET LEE CAFFEY PAYNE

I

I STATE OF VIRGINIA

I COUNTY OF------

1 Acknowledged. subscribed, &ltd sworn to before me by Harriet Lee

\1 Caffey Payne this day of September. 1976.

I! II ,, jj Notary Public

p /! My Commission Expires: _________ _

i I !

!!

II Raymond L. Bartos 1: Post Office Box 1 0093 1 Alexaadria, Virginia 22310 ! Counsel for Plaintiff I

I' I hereby certify that copies of this pleading were mailed or hand lj delivered to all counsel of record this day of September. 1976. I

li ~~······ i, II "

12

~ ! i !

PRAECIPE

The Clerk 1& requested to place the above styled cause on the dock'

for the Motion Day of the Court to be had oa the 1st day of October, 1976. f;

.1 tbe followiag purpose:

I

II Warrant aad Affidavit filed against him.

I

1. Argument on pleadings: Defendant's Demurrer to the Civil

II 2. Set for trial on the merits, for which purpose I certUy that th4 il I! above styled cause is matured for trial on its merits to be set for trial wW: ,, II II

I! jury.

II COUDsel's estimate of time required forth' hearing: 15 mintltel

j/ Dated this 20th day of September, 1976.

ji ,I II !i ,I ;!

ii I

II il II

1:

li lr

li I!

itiymond L. Bartos Attorney for Plaintiff 7248 Wickford Drive, P. 0. Box 1009: Alexandria. Virginia 22310 Telephone: 703/971-2522

CERTIFICATE OF SERViCE

I, I certify that on the 20th day of September, Ul'f6, 1 mailed or !; delivered a true copy of the foregoing Praecipe to Walter c. Jacob of Hall rl Monahan, Engle, Mahan &. Mitchell. Attorneys at Law. 3 East J\.1arket Stre ~-~~ Leesburg, Virginia,. Attorney for Defendant. TL ·--"") I _..--J p··· / ! .-~·· ,/· ..--· ~ .

:1 1\. ·--5 i! dymond L. Bartos ~; Attorney tor Plaintiff j ~ •' .I

'I

i

I

1.3

RAYNER V. SNEAD, .JUDGE:

POST OFFICE Box 9

WASHINGTON, VIRGINIA .22747

TwENTIETH JUDICIAL CIRCUIT

OF VIRGINIA

FAUQUIER. LOUDOUN AND

RAPPAHANNOCK CoUNTIES

CARLETON PENN, .JUDGE:

DRAWER 471

LE:E:SBURG, VIRGINIA 22075

October 12, 1976

Mr. Walter C. Jacob, Attorney at Law Three East Market Street Leesburg, Virginia 22075

Mr. Raymond L. Bartos, Attorney at Law 7246 Wickford Drive Alexandria, Virginia 22310

Re: Payne vs. Payne

Gentlemen:

Law No. 4992

The Court finds that Mrs. Payne was, as she contends, an accomodation maker with her husband upon the note in favor of the bank. Her suit is not upon the note, it having been marked "Paid" and not assigned to her, but upon the oral agree­ment with her husband that he would indemnify her. It was necessary that she pay the note, but she did not file this suit until more than three years thereafter •

. "The right to contribution becomes complete and en­forceable upon the payment or discharge of the common obliga­tion." (Cases cited). Van Winckel v. Carter, 198 Va. 550, 556.

The plea to the statute of limitations must be sustained.

CP/m

1_4

HAU.. IIONAHAN. EN•U MAHAN a MITCHELL

ATTORNEYS AT LAW

L£1!:'i8URG. VIRCIINIA

WINC:HIESTIEII, VIR~IHIA

0 R D E R

This case came on for Hearing on October 1st, 1976, upoJ

the Defendant's Plea to the Statute of Limitations, and was

argued by counsel,

And it appearing to the Court from the Pleadings and

exhibits that the Note dated February 1st, 1973, was marked "Paj

and was not assigned to the Plaintiff; that the basis of the suj

is upon the oral agreement of the Defendant to indemnify the

Plaintiff and that the three year Statute of Limitations is

applicable,

UPON CONSIDERATION WHEREOF, the Court doth ADJUDGE and

ORDER that the Defendant's Plea to the Statute of Limitations be

sustained, and this case is hereby dismissed and stricken from

the docket.

ENTER this ;1/Jaay

al er C. Jacob HALL, MONAHAN, E MAHAN & MITCHELL Attorneys at Law 3 East Market Street Leesburg, Virginia 22075

Counsel for Defendant

ney at !Jaw Wickford Drive

Alexandria, Virginia 22310 Counsel for Plaintiff

1.5

A COPY-TESTE

::.Te~::t~------Deputy Clerk

I I

NOTICE OF APPEAL AND ASSIG!'.'l\1ENTS OF ERROR

To the Clerk of the Circuit Court of Loudoun CoWlty:

Counsel for Harriet Lee Caffey Payne. Plaintiff, in the above styled

1 case in the Circuit Court of Loudoun County, Virginia. hereby gives notice of

I appeal from the order entered ln this case on October 21. 1976, and sets

forth the following assignments of error:

! That the Court erred in sustaining the defendant's plea of the three

I! year Statute of Limitations and dismissing the plaintiff1s case. !I

li ,, j: I;

II L

RA YM.OND L. HARTOS Counsel for Plaintiff

l certify that a copy of the foregoing Notiee of Appeal and Assign-

.: ments of Error was hand delivered to v.·alter C. Jacobg of Hall, Monahan. " ,,

jl Engle, 1\lahan & !;.iitchell, Attorneys at Law~ 3 East Market Street,. Leesburg .. •

i Virginia 22075, Counsel for Defendant., on the---- day of ------J! I'

I! 1976.

;, ;

16