Commonwealth, use &c. v. Hall.

• Decision Date: 01 March 1875
• Citation: 8 W.Va. 259
• Court: West Virginia Supreme Court
• Parties: Commonwealth, use &c. v. Hall.

8 W.Va. 259

Commonwealth, use &c.

v.Hall.

Supreme Court of Appeals of West Virginia.

March 1, 1875.

A bill or exceptions to the opinion of the court overruling a motion for a new trial, not being signed by the judge, does not become'^ a part of the record, and the evidence therein reported can not be examined by an Appellate Court.

Supersedeas, granted by a Judge of this Court on the petition of the Commonwealth of Virginia suing for the use of M. P. Amiss, commissioner, relator, who sued for the use of John Hall and Daniel Boughner, late partners under the firm name of Hall & Boughner, the plaintiff below, to a judgment of the circuit court of Wood county rendered on the 23d day of January, 1874, in the name and for the benefit aforesaid, against Cyrus Hall and Lewis A. Phelps, surviving obligors of themselves and E. McClaskey, deceased. The action was founded upon a bond with conditions.

The opinion of the Court contains a statement of so many of the material facts as is necessary to understand the principles adjudicated here.

The Hon. Joseph Smith, judge of the circuit court of Jackson county, presided at the trial below.

George Loomis, for the appellant.

Scott & Cole and Walter S. Sands, for the appellees.

Patjll, Judge:

The plaintiffs bring an action of debt for the recovery of an amount claimed to be due by the defendants on a conditional bond given by them for the proper discharge I of their duties as commissioners appointed to make sale j of land under a decree in chancery.

Defendants plead payment and conditions performed. The parties waiving a jury, the matters of law and evidence arising in the cause were submitted to the court and the court having heard the evidence in full, and the arguments of counsel was of opinion that the plaintiffs are not entitled to recover anything of the defendants in this cause. And the court was further of opinion that the defendants are entitled to recover of John Hall and Daniel Boughner, late partners as Hall & Boughner, on account of their off-sets filed against them in this cause the sum of $238.74, with interest, &c. Thereupon the plaintiffs moved the court to set aside the said judgment so rendered in this cause, and to grant a new trial therein on the ground that the said judgment was contrary to the evidence, which motion was overruled; and thereupon the plaintiff tendered a bill of exceptions, which it is said, was read, signed and sealed by the court, and ordered to be made a part of the record in this cause. From this judgment of the court, in refusing to grant a new trial, an...