Ault v. O'Brien

• Decision Date: 12 December 1939
• Docket Number: 9027.
• Citation: 6 S.E.2d 228,121 W.Va. 705
• Parties: AULT v. O'BRIEN, Judge.
• Court: West Virginia Supreme Court

6 S.E.2d 228

121 W.Va. 705

AULT v. O'BRIEN, Judge.

No. 9027.

Supreme Court of Appeals of West Virginia.

December 12, 1939

Erskine, Palmer & Curl, of Wheeling, for relator.

Riley & Riley, of Wheeling, for respondent.

KENNA Judge.

This original proceeding in mandamus was brought for the purpose of requiring the Honorable J. J. P. O'Brien, Judge of the Circuit Court of Ohio County, to settle a bill of exceptions prepared in narrative form and not including a typewritten transcript of any part of the testimony taken in an action for personal injury, which was instituted by the petitioner against L. S. Good & Company and resulted in a

verdict for the defendant. The defendant company filed written objections to the signing of the bill, the trial judge declined to certify and rejected a tendered order reciting that the plaintiff had requested counsel for the defendant to call attention to any omissions or inaccuracies in the proffered bill, which they had declined to do because of the lapse of time since the trial of the case. The record indicates that the judge believed that a transcript of the entire testimony was the only satisfactory method by which a bill could be prepared.

The memorandum filed by the attorneys for respondent refers to Code, 56-6-35, as the statute governing the procurement of bills of exception at the present time, and seems to contend that it requires the court to certify all of the evidence. The memorandum goes on to cite the cases of Poteet v County Commissioners of Cabell County, 30 W.Va. 58, 3 S.E. 97, handed down before the enactment of Code, 56-6-35 and Plate v. Durst, 42 W.Va. 63, 24 S.E. 580, 32 L.R.A. 404 and quotes from the latter case as requiring a transcript of the whole evidence and stating that to construe the statute strictly is to be commended although it may add to the cost of litigation, and that the legislature, and not the court, should provide the remedy.

Both the memorandum for the petitioner and that for the respondent refer to the case of Bailey Lumber Co. v. Ward, Judge, 1930, 109 W.Va. 55, 152 S.E. 862, and both memorandums concede that the effect of that opinion is to construe the statutory provision (Code, 56-6-35) that all the evidence touching the question sought to be reviewed be certified upon a bill of exceptions, as directory and not mandatory, and that in the event circumstances arise such as destruction of the stenographer's notes, etc., which make it impossible to prepare a complete transcript, a narrative statement will suffice.

The memorandum filed by the petitioner cites the cases of Cummings v. Armstrong, Judge, 34 W.Va. 1, 11 S.E. 742; King v. Jordan, 46 W.Va. 106, 32 S.E. 1022, and several others, including the Bailey Lumber Co. case. The Jordan case placed a construction upon the then statute which, without mentioning the Plate case, regarded the provisions as directory and not mandatory, and as not requiring all the evidence to be certified, but that certifying "the facts", as was done before the enactment of the statute, still remained sufficient. The two opinions were based upon the same section of the Code.

The manner of preparing, certifying and presenting bills of exception is, without question, to be classified as procedure. When the revised Code of 1931 was adopted, Code, 51-1-4, conferring upon this Court the power to promulgate rules of pleading, practice and procedure governing all courts of record in this State, was included. The power then conferred was subject to existing statutes. However, that section, when amended and re-enacted in 1935 (Acts 1935, ch. 37), contained a provision which classifies existing statutes relating to pleading, practice and procedure as rules of this Court and provides further that they shall remain in effect unless and until modified, suspended or annulled by a rule promulgated under the section referred to. This Court has adopted no rule relating to bills of exception since the nineteen thirty-five amendment.

Under the 1931 Code, this Court, in 1934, adopted "Rules of Practice", 114 W.Va. lxvii, to be followed here, and in section 1 of Rule I, will be found the following: "It is the office of a bill of exceptions to point out errors committed by the court during the progress of the trial. The bill or bills should contain only a concise statement of the facts necessary to present the points intended to be relied on as grounds of error, or only so much of the evidence as may appear necessary to present fairly the rulings of the court to which exceptions are taken. No bill of exceptions should contain matter irrelevant or unnecessary to the presentation of the question intended to be raised." The assumption being that this Court at...