
    CIRCUIT COURT OF AUGUSTA COUNTY
    Stratford Farms, Inc. v. H. O. Alexander et al.
    January 31, 1978
    Case No. 4683
   By JUDGE ROSCOE B. STEPHENSON, JR.

The question presented is whether the court should permit certain defendants who are in default as defined by Rule 2:7 to file responsive pleadings. The answer to this question involves a consideration of Rule 1:9 which provides:

All steps and procedures in the clerk’s office touching the filing of pleadings and the maturing of suits or actions may be reviewed and corrected by the court.
The time allowed for filing pleadings may be extended by the court in its discretion and such extension may be granted although the time fixed already has expired; but the time fixed for the filing of a motion challenging the venue shall in no case be extended except to the extent permitted by § 8.01-264.

The present case is a declaratory judgment proceeding instituted by Stratford Farms, Incorporated, to have the court determine "the rights and legal relations of petitioners and respondents with regards to" a certain first refusal agreement, and to remove a cloud on title. By its very nature, a suit seeking a declaratory judgment requires the court, in most instances, to hear and decide both matters of fact and law. Indeed, Paragraph 14 of the petition alleges "that a clear and present dispute now exists" between the parties, and thereafter the same paragraph proceeds to briefly set forth the contentions of each party as the petitioner views them. It would seem, therefore, that in a case of this sort there is more justification for permitting late filing of responsive pleadings than there might be in other types of cases, unless the circumstances surrounding the defendants’ failure to file timely would dictate an opposite conclusion.

The circumstances of this case, as they relate to all defendants in default, suggest to the court that permitting late filings would promote the ends of justice. To permit it would not prejudice the petitioner’s case.

Since a resolution of the question rests within the sound discretion of the court, Westfall v. Westfall, 196 Va. 97, 103, 82 S.E.2d 487, 490 (1954), and since the nature and circumstances of this case suggest that justice will be promoted by granting the defendants leave to file late pleadings, such leave is accordingly granted. The affidavits and exhibits attached thereto filed by the parties relating to this matter are hereby made a part of the record.  