
    CIRCUIT COURT OF THE CITY OF RICHMOND
    Simon, Lafayette & Associates v. Deborah Gibson and Thomas Jenkins
    January 13, 1998
    Case No. LC-2734
   By Judge Melvin R. Hughes, Jr.

This case, here on removal from the General District Court, is before the court on plaintiffs motion to remand for want of an affidavit of substantial defense.

According to the parties, both sides appeared by counsel in General District Court on the return day. At that time counsel for defendant moved to remove the case and advised the court that the costs had been paid. Plaintiff objected noting that defendant had failed to file an affidavit of substantial defense required by Va. Code § 16.1-92. No affidavit of substantial defense was filed until after the file came to this court. Now plaintiff argues that jurisdiction remains with the district court and the file should go back there. The court agrees.

Under § 16.1-92 removal of a case from General District Court to Circuit Court must be effected on or before the return date or within ten days of the return date if trial has not begun. According to the procedure outlined in the statute, removal is accomplished “upon the application of any defendant, the filing by him of an affidavit of himself, his agent or attorney, that he has a substantial defense to the action, and the payment by him of the costs accrued to the time of removal, the writ tax as fixed by law, and the costs in the court to which it is removed... .”

Defendant’s reliance on Rule 1:10 is misplaced. This rule says that a requirement of an affidavit with a pleading is waived if no objection is made within seven days. The removal statute speaks to removal “upon the application of any defendant” with an affidavit of substantial defense. This does not involve necessarily a pleading within the meaning of Rule 1:10.

Further, just as in Krause v. Rychlik, 40 Va. Cir. 215 (1996), where the court remanded a removed case for reasons of nonpayment of costs, the same result obtains here where another statutory requirement for removal, an affidavit of substantial defense, was never filed in the court from which the case was removed.

The court asks Mr. Montgomery to prepare and submit an order for remand for the reasons stated herein.  