Milliken v. Bradley Supplemental Brief for Respondents Bradley

    IN THE

Supreme Court of Appeals of Virginia
AT RICHMOND

Record No. 6253

L. WILSON YORK, et al,
Appellants,

v.

CITY OF DANVILLE,
Appellee.

PETITION FOR REHEARING

JAMES A. H. FERGUSON 
City Attorney 
101 Municipal Building 
Danville, Virginia 24541

WILLIAM H. FULLER, III 
Assistant Commonwealth’s Attorney 
Masonic Building 
Danville, Virginia 24541

JOHN W. CARTER 
124 South Market Street 
Danville, Virginia 24541

Counsel for Appellee



TABLE OF CONTENTS
Page

Petition for Rehearing............... ........... ....... ...... ...... 5
I. Costs Should Be Assessed In Only One 

Case.................  .5
II. Section 14.1-196 of Virginia Code Does 

Not Contemplate Multiple Attorney’s 
Fees In Series of Similar Cases................. 7

Conclusion........................................... ...... .....................7

TABLE OF CITATIONS 
Cases

Ficklen v. City of Danville, 146 Va. 426, 131 
S. E. 689 (1926).....       ...6

MeCready v. Lyon, 167 Va. 103, 187 S. E. 442 
(1936)...................      6

Roller v. State Milk Commission, 204 Va. 536,
132 S. E. 2d 427 (1963).................. .......... .......... 6

Scott v. Doughty, 130 Va. 523, 107 S. E. 729 
(1921)........... ...........................................................6

Williams v. Bond, 120 Va. 678, 91 S. E. 627 
(1917).........................................     6

Statutes
Code of Virginia, § 14.1-181............ ...... ........ ...... 6, 7
Code of Virginia, § 14.1-196...........   ....7
Code of Virginia, § 14.1-197.......     7
Code of Virginia, § 14.1-198.....................   7





IN THE

Supreme Court of Appeals of Virginia
AT RICHMOND

Record No. 6253

L. WILSON YORK 
ANNIE PEARL AVERY 

CLYDE LANGSTON BANKS 
PERCY BRADFORD BOONE 

JOHNNY ALLEN BOWLES, JR. 
LUTHER ALFRED BROWN 

ROSA MARIE CAIN 
LELIA VIRGINIA CLARK 

MARGARET LEE COLEMAN 
MARION JOHNSON COLEMAN 

SILAS COLEMAN 
MARY HELEN CREWS 

OTHIA DAVIS
MARGARET PHEBAE DILLARD 

JOHN ROOSEVELT DODSON 
LENA EMMERSON FERRELL 

MAMIE LEE FLEMINGS 
ARDELIA FREEMAN 

DOROTHY GALES 
THOMAS LEE GLASS, JR.

RICHARD DRUMMOND GOODWIN
3



MABLE GRAVES 
ANNIE MAE LEWIS HAIRSTON 

GLADYS MARIE HARPER 
GERTIE WILLIAMS HARRIS 

JOE WILLIE HARVEST 
JOSEPH KENEITH HATCHETT 

RONALD LEON HOFFMAN 
RUBY SPRAGGINS WYLLIE HOLLOWAY 

GROVER CLEVELAND HOLT 
IRADELL GRAVES JEFFRIES 
LESLIE WISNER LANCASTER 

WILLIE TERRY LANIER 
EDNA ROSE IRBY LYNN 

ADELL MORRISON 
ROBERT LEE MORTON 

MELBA GRAVES MURRILL 
MAXINE LUCK MUSE 

ROBERT EARL OVERBY 
DELORES JEANNEATTA PAGE 

BRIAN LEE PETERSON 
ARTHUR PINCHBACK, JR. 
BARBARA ANN POUNDS 

LUVINIA PRITCHETT 
ROBERT LEWIS QUARTERMAN 

ODARIS ROBINSON
LORRAINE COATLAND BOWE SCHROETER 

AZZARIE BENSON SLADE 
DOROTHY LEE SMITH 
CLAUDE STEVENSON 

4



ELIZABETH PHILLIPS STILL 
MAGGIE JAULILLIAN SUMMERS 

WILLIE THOMAS SUTHERLIN 
MARIE THOMAS 

ROBERT LEE TRENT 
MAGGIE MAXINE WILLIAMS 

JACQUELINE MILLER WILSON 
MELVIN WILSON 

GARLAND WITHERSPOON 
HESTER WILLIAM WOMACK 

JOHN ROBERT ZELLNER,
Appellants,

CITY OF DANVILLE,
Appellee.

PETITION FOR REHEARING

Your petitioner, City of Danville, respectfully 
requests a rehearing in the above-entitled causes 
and that this Court’s orders therein, dated January 
18, 1967, be modified as to costs assessed against 
the City in all cases except York for the reasons 
and upon the grounds following, to-wit:

I
Costs Should Be Assessed In 

Only One Case
The Court heard only one of the above cases 

out of sixty-one, namely: York v. City of Danville
5



(Record No. 6253). As a result of the holdings in 
that case, the other sixty cases were summarily 
reversed and annulled upon petitions previously 
filed by the sixty parties aggrieved.

It is conceded that the costs assessed in York 
($553.74) were properly assessed and no complaint 
is here made as to those costs. However, it is here 
argued that the assessment of $59.50 costs in each 
of the remaining sixty cases for a total of $3,570.00 
is erroneous.

Section 14.1-181 of the Code of Virginia, 1950, 
as amended, provides for the recovery of costs in 
this Court by the party substantially prevailing. 
It is here contended that even though the cases 
hold that such are mandatory, these sixty-one cases 
should be treated as one cause. There is a series of 
cases that hold that costs are mandatory. Williams 
v. Bond, 120 Va. 678, 91 S. E. 627 (1917); Scott v. 
Doughty, 130 Va. 523, 107 S. E. 729 (1921); Mc- 
Cready v. Lyon, 167 Va. 103, 187 S. E. 442 (1936) ; 
Roller v. State Milk Commission, 204 Va. 536, 132 
S. E. 2d 427 (1963). But see Fieklen v. City of Dan­
ville, 146 Va. 426, 131 S. E. 689 (1926), where it was 
held that when it is shown that the controversy in 
a case ceases to exist leaving only moot questions 
there can be no recovery of costs. It is contended 
that treating all these cases as one, the holding in 
York made the remaining sixty cases moot and no 
costs needed to be assessed therein, as they were 
not actually heard, but were to stand or fall on 
the decision in York.

6



II

Section 14.1-196 of Virginia Code Does Not 
Contemplate Multiple Attorney’s Fees 

In Series of Similar Cases
The last sentence of Section 14.1-196 of the Vir­

ginia Code, 1950, as amended, which section pro­
vides for the assessment of $50.00 attorney’s fee 
in the Supreme Court of Appeals, is of interest and 
is here quoted:

“But in no case shall more than one fee be 
taxed against the same party.”

If these cases are treated as one, then only one 
attorney’s fee should be assessed and not sixty-one. 
Again, only the York case was heard by the Court 
and the assessment of the costs in that cause amply 
covers the costs for all the cases.

CONCLUSION

The statutes providing for recovery of costs, i.e., 
Sections 14.1-181, 14.1-196, 14.1-197 and 14.1-198 of 
the Code of Virginia, 1950, as amended, did not and 
do not contemplate that where there is a series of 
appeals arising out of a single set of facts and a 
single happening and this Court hears one of such 
cases and none of the others are briefed or argued, 
that such should be separately assessed in all the 
causes. Especially should this be true where the 
losing party is the same in all such orders.

Accordingly, petitioner prays that no costs be

7



assessed in the sixty cases that were reversed and 
annulled in conjunction with York.

Respectfully submitted,
JAMES A. H. FERGUSON
Of Counsel for Appellee

James A. H. Ferguson 
City Attorney 
101 Municipal Building 
Danville, Virginia 24541

William H. Fuller, III 
Assistant Commonwealth’s Attorney 
Masonic Building 
Danville, Virginia 24541

John W. Carter 
124 South Market Street 
Danville, Virginia 24541

Counsel for Appellee

CERTIFICATE
I certify that on or before the date of filing of 

this petition three copies thereof were mailed to 
opposing counsel, viz: S. W. Tucker, 214 East Clay 
Street, Richmond, Virginia 23219; Jack Greenberg, 
James M. Nabrit, III and Melvyn Zarr, 10 Colum­
bus Circle, New York, New York 10019; Ruth L. 
Harvey, 453 South Main Street, Danville, Virginia 
24541; and J. L. Williams, 212 North Ridge Street, 
Danville, Virginia 24541.

JAMES A. H. FERGUSON
8