Chap. 357.—An ACT to amend and re-enact Section 6046 of the Code of Virginia,
as heretofore amended, relating to notices of motion in lieu of action at law;
when notice to be returned to clerk’s office; rules applicable thereto. [H B 372]

Approved March 30, 1940

1. Be it enacted by the General Assembly of Virginia, that
Section 6046 of the Code of Virginia, as heretofore amended, be
amended and re-enacted so as to read as follows:

Section 6046. ‘‘Any person entitled to maintain an action at law
may, in lieu of such action at law, proceed by motion, before any
court which would have jurisdiction of such action, after not less
than fifteen days’ notice, which notice shall be in writing, signed by
the plaintiff or his attorney, and shall be returned to the clerk’s office
of such court, within five days after service of same, and when so
returned shall be forthwith filed and the date noted thereon, and shall
be docketed on the return day thereof. But the notice shall not be
sent out of the county or city in which the judgment is to be asked,
except in those cases in which process can be so sent out under the pro-
visions of section six thousand and fifty-five and six thousand and
fifty-six. The return day of a notice under this section shall not be
more than ninety days from its date, unless the commencement of
the next succeeding term of court be more than ninety days from
such date, in which case the return day may be some day of such term.

“The defendant may make the same defenses to the notices as to
a declaration in any action at law, and in the same manner, or he
may state his grounds of defense informally in writing, and in the
latter event the parties shall be deemed to be at issue on the grounds
stated without replication or other pleading on the part of the plaintiff.
No plea in abatement under this section shall be received after the
defendant has demurred, pleaded in bar or filed such statement of his
grounds of defense. An action shall be deemed brought on the day
on which such notice is executed, if such notice be subsequently re-
turned to the clerk’s office to which same is returnable, within the
time herein prescribed, and the execution thereof shall stop the run-
ning of the statute of limitations on the claim mentioned therein.

“Tf the motion be upon an account, the plaintiff shall file with the
notice an account, stating distinctly the several items of his claim,
unless they be plainly described in the notice. If the motion be upon
any contract, express or implied, for the payment of money, and if
the plaintiff file with the notice an affidavit, such as is prescribed by
section sixty-one hundred and thirty-three, on the part of the plaintiff
in an action of assumpsit, no plea in bar or defense to the merits shall
be received on the part of the defendant, unless accompanied by
such affidavit as is prescribed by the last mentioned section on the
part of the defendant in an action of assumpsit. If such plea and
affidavit be not filed by the defendant, the plaintiff shall, upon motion
made in open court, be entitled to a judgment for the amount claimed
in the affidavit filed with his notice, and no further proof of the plain-
tiff’s claim shall be necessary. If such plea of defense and affidavit be
filed and the affidavit admits that the plaintiff is entitled to recover
from the defendant a sum certain less than that stated in the affidavit
by the plaintiff, judgment may be taken by the plaintiff for the sum
so admitted to be due, and the case be tried as to the residue.

‘Upon any motion under this section the same rules shall apply,
with reference to bills of particulars and grounds of defense, as are
now provided by law in other actions or motions.

“In the event the return day of any notice given under the pro-
vision of this section, should happen to be a day of the term on which
the court did not sit, or a day after the final adjournment of a term,
such notice shall not be lost, but shall be deemed matured for hearing
on the first day thereafter of the same term on which the court sits or
the first day of the next regular term of the said court, as the case
may be, and shall be docketed on that day by the clerk.”’