Chap. 374.—An ACT to amend and reenact Section 6046 of the Code of Virginia,
as amended, relating to notice of motion for judgment. {S 25]

Approved April 1, 1948

Be it enacted by the General Assembly of Virginia:

1. That section sixty hundred forty-six of the Code of Virginia, as
amended, be amended and reenacted 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 provisions of section six
thousand fifty-five and six thousand 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 notice 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 de-
murred, 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 returned to the clerk’s office
to which same is returnable, within the time herein prescribed, and the
execution thereof shall stop the running of the statute of limitations on
the claim mentioned therein.
The notice of motion, with sufficient copies to enable the serving
officer or officers to serve a copy upon each defendant and have one to
make his return thereon, may be delivered to the clerk of the court
to whose office same is returnable, and it shall be the duty of the said
clerk, upon the payment of the writ tax and the clerk’s deposit, to note
on the original thereof the date the said notice and copies were delivered
to him and deliver same or place same in the course of delivery for
service to some officer or officers or other person or persons possessing
authority to serve same, to be served, and the clerk shall note on his
process book the time of the filing of such notice. In the event the course
of procedure provided for in this paragraph is resorted to, the action
shall be deemed to be brought or commenced on the day the notice and
copies are delivered to the clerk and have the effect of stopping the
running of the statute of limitation as of that date.

Provided, however, that the plaintiff or his attorney may file with the
clerk in whose office the notice is returnable the original thereof and
sufficient copies to enable the serving officer or officers to serve upon each
defendant a copy and have one to make his return thereon, and the
clerk, upon the payment of the writ tax and clerk’s deposit shall deliver
same or place it in course of delivery for service to some officer whose
duty it is to serve process or other person and note on the copy retained
by him the date of filing, and the action shall be deemed brought on
the day on which such notice is filed with the clerk and the filing thereof
shall stop the running of the statute of limitations on the claim mentioned
therein.

If 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 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 plaintiff'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 provisions
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 court, as the case may be, and
shall be docketed on that day by the clerk.