Parkway Fuel Serv., Inc. v. Pauley, 13538

• Decision Date: 16 December 1975
• Docket Number: No. 13538,13538
• Citation: 159 W.Va. 216,220 S.E.2d 439
• Court: West Virginia Supreme Court
• Parties: PARKWAY FUEL SERVICE, INC. v. Roy PAULEY.

Page 439

220 S.E.2d 439

159 W.Va. 216

PARKWAY FUEL SERVICE, INC. v. Roy PAULEY.

No. 13538.

Supreme Court of Appeals of West Virginia.

Dec. 16, 1975.

Syllabus by the Court

1. When one party to an appeal in this Court files a brief and the other party does not, the party in compliance with Rule VI of the Rules of this Court obtains control of the case under Section 6, Rule VI, and he may have the case submitted or continued at his option.

2. A motion under Rule 59(e) of the West Virginia Rules of Civil Procedure to alter or amend a judgment and a motion under Rule 60(b) for relief from judgment are remedies which exist concurrently with and independently of the remedy of appeal, and the failure to apply for such relief in the trial court does not affect the appealability of a final judgment.

3. Section 2 of Rule IX of the Rules of this Court requires that, except in ex parte hearings, affidavits will not be considered by this Court unless reasonable notice be given to the opposing party or his counsel of the time and place of the taking of the affidavit, with the right of cross-examination.

4. In ruling upon a motion to dismiss an appeal, courts as a general rule will be governed entirely by the record.

5. A court of record speaks only through its records, and where it is stated in an order that the defendant objected and excepted to the entry of judgment, it cannot be questioned subsequently in an appellate court.

6. 'Rule 52(a) mandatorily requires the trial court, in all actions tried upon the facts without a jury, to find the facts specially and state separately his conclusions of law thereon before the entry of judgment. The failure to do so constitutes neglect of duty on the part of the trial court, and if it appears on appeal that the rule has not been complied with, the case may be remanded for compliance.' Point 1, Syllabus, Commonwealth Tire Company v. Tri-State Tire Company, W.Va., 193 S.E.2d 544 (1972).

7. 'When the record in an action or suit is such that an appellate court can not in justice determine the judgment that should be finally rendered, the case should be remanded to the trial court for further development.' Point 2, Syllabus, South Side Lumber Company v. Stone Construction Company, 151 W.Va. 439, 152 S.E.2d 721 (1967).

No appearance for appellant.

John G. Anderson, Winfield, Catsonis & Linkous, Leo Catsonis, Thomas L. Linkous, Charleston, for appellee.

FLOWERS, Justice.

In this appeal from the Circuit Court of Putnam County, judgment was entered in favor of the plaintiff, Parkway Fuel Service, Inc., and against the defendant, Roy Pauley, for $4,000.00 rent and possession of the rental property. The defendant assigns as error the summary entry of judgment, over his objection and without evidence to support it, when the facts were in dispute and a timely demand for a jury trial had been made.

After being granted this appeal, the defendant failed to file a brief and did not appear when the case was called for argument. The plaintiff exercised his option under Section 6, Rule VI of the Rules of this Court to have the case submitted for decision and moved to dismiss the appeal.

As grounds for dismissal, the plaintiff raises the defendant's failure to file a brief and contends that the appeal was improvidently awarded for two reasons: (1) No motion for relief from the judgment, under Rule 59 or Rule l0 of the Rules of Civil Rule 59 or Rule 60 of the Rules of Civil (2) an affidavit was attached to the petition for appeal without giving the notice required by Section 2, Rule IX of the Rules of this Court.

I

While Rule VI of the Rules of this Court requires the filing of a brief and sets forth the time and manner in which it shall be accomplished, the effect of noncompliance by one party is not dismissal of the appeal. When one party to an appeal files a brief and the other party does not, the party in compliance with Rule VI obtains control of the case under Section 6, Rule VI, and he may have the case submitted or continued at his option. In the instant case, counsel for the plaintiff elected to submit the case for decision and the case was heard, as Rule VI, Section 6 permits, upon ex parte argument. A dismissal may be effected in these circumstances only when no briefs have been filed by either party and the case has been continued under Section 7 of Rule VI for four successive regular terms. Section 1, Rule XII of the Rules of this Court.

Moreover, an appeal cannot be dismissed as improvidently awarded simply because the appellant failed to request relief from the judgment in the trial court by a motion under Rule 59 or Rule 60 of the Rules of Civil Procedure. A trial court may amend or alter a judgment upon a Rule 59(e) motion which is served no later than ten days after the entry of the judgment. Rule 60(b) provides for relief from a judgment in certain stated circumstances when a motion is made within a reasonable time after the entry of judgment. These remedies exist concurrently with and independently of the remedy of appeal, and failure to apply for such relief does not affect the appealability of a final judgment. W.Va. Code, 58--5--1, permits a party to a controversy to obtain an appeal or a writ of error when the matter in controversy exceeds three hundred dollars and a final judgment has been entered. See Article VIII, Section 3 of the Constitution of West Virginia.

Finally, the appellee speculates that the appeal may have been improvidently awarded due to reliance by this Court upon an affidavit filed with the petition for appeal. The affidavit of Stephen P. Meyer, attorney for the defendant below but not counsel at the time of the appeal, alleged that affiant had informed opposing counsel of his unavailability on the scheduled date of trial in Putnam County and had asked that the judge be notified. Shortly thereafter he received a letter from the judge asking for a conference at an early date. At the conference affiant explained that he was in federal court in Beckley on the scheduled trial date in Putnam County. The court nevertheless entered judgment without testimony and over affiant's objection. Notice of the taking of the affidavit was not given the appellee by the appellant.

The appellee is correct in his contention that such evidence cannot be considered here 'unless reasonable notice be given to the opposing party or his counsel of the time and place of the taking of the same, with the right of cross-examination.' Section 2, Rule IX, Rules of the Supreme Court of Appeals. This rule requires depositions in order to have proper proof, although such depositions may be labeled or called affidavits. State ex rel. Scott v. Boles, 150 W.Va. 453, 147 S.E.2d 486 (1966). Where no notice or opportunity to cross-examine has been afforded opposing counsel, the affidavits may not be considered. State ex rel. Browning v. Jarrell, W.Va., 192 S.E.2d 493 (1972). See State v. Knotts, W.Va., 197 S.E.2d 93 (1973).

However, the record before us, stripped of the offending document, reveals that the defendant filed a general denial to the complaint and demanded a trial by jury. The judgment order shows that the court heard only the arguments of counsel and then entered judgment for the plaintiff, noting the objection and exception of the defendant. On this basis a proper case for appeal was presented. To hold otherwise would require resort to facts dehors the record. In ruling upon a motion to dismiss an appeal, courts as a general rule will be governed entirely by the record. Rountree v. Rountree, 200 Va. 57, 104 S.E.2d 42 (1958); 5 C.J.S. Appeal & Error § 1377, p. 494; 5 Am.Jur.2d Appeal and Error § 926, p. 355. The instant case does not fall within the recognized exceptions to this rule. ¹

II

On the merits of the appeal, the appellee, plaintiff below, invites the Court's consideration of a verified motion relating facts at variance with portions of the record filed herein and supported by dertain exhibits. The motion to dismiss was served upon counsel for the defendant.

In sum, appellee's averments and exhibits indicate that counsel for the defendant first advised opposing counsel that he was going to file a counteraction in federal court seeking specific performance of an oral contract to sell the rental property to the defendant. After his answer of general denial and demand for a jury trial, a trial date was set for July 29, 1974.

The record reveals that counsel for the defendant then wrote to Circuit Judge Thompson expressing 'serious doubts about' his 'current status with Mr. Pauley (the defendant)' with whom he had lost contact and noting a tentative requirement to...