Bailey Lumber Co. v. Ward

• Decision Date: 15 April 1930
• Docket Number: 6743.
• Citation: 152 S.E. 862,109 W.Va. 55
• Parties: BAILEY LUMBER CO. v. WARD, Judge.
• Court: West Virginia Supreme Court

152 S.E. 862

109 W.Va. 55

BAILEY LUMBER CO. v. WARD, Judge.

No. 6743.

Supreme Court of Appeals of West Virginia.

April 15, 1930

Submitted April 8, 1930.

Syllabus by the Court.

Law requiring all evidence touching question complained of to be certified by trial judge is directory merely (Code, c. 131, § 9).

That portion of section 9, chapter 131, of the Code, providing that if the trial court's action or opinion complained of be upon any question involving the evidence, all the evidence touching such question shall be certified by the trial judge is directory, and is not to be construed to abolish the old rule so far as to make utterly inoperative and void a certificate of the facts according to the law prior to the enactment of said statutory provision.

Court has duty where bill of exceptions is tendered which does not fairly state truth of case, to settle bill with aid of counsel; mandamus will lie to compel court to settle bill of exceptions.

"When a bill of exceptions is tendered which does not fairly state the truth of the case, it is the duty of the court, with the aid of the counsel, to settle the bill, and when settled to sign it, and if the court refuses to do this mandamus will lie to compel it to do so." Poteet v. County Commissioners, 30 W.Va. 58, 3 S.E. 97.

Original mandamus by the Bailey Lumber Company against the Honorable Columbus M. Ward, Judge of the Circuit Court of Raleigh County.

Writ awarded.

Arthur F. Kingdon, of Bluefield, for relator.

Williams & Riffe, Carl C. Sanders, and File, Goldsmith & Scherer, all of Beckley, for respondent.

MAXWELL J.

This is a mandamus proceeding to require the Honorable Columbus M Ward, judge of the circuit court of Raleigh county, W. Va to settle and sign a proper bill of exceptions setting forth the facts proved at the trial before the said judge in lieu of a jury of the action at law of Bailey Lumber Company, a corporation, against C. O. Dunn, in which action at law of Bailey Lumber Company, a corporation, against C. O. Dunn, in which action the plaintiff did not recover the full amount to which it deemed that it was entitled, and therefore desires to prosecute in this court a writ of error to the judgment of the trial court.

In his answer to the alternative writ of mandamus, the respondent says that the certificates of fact, which were presented to respondent by counsel for Bailey Lumber Company for the signature of respondent in order to make the said certificates, or one of them, a bill of exceptions, do not fairly state the truth of the case; that respondent was not required by law to prepare and certify the evidence; but that it was the duty of the relator, in good faith, to prepare and present to respondent the evidence given upon the trial of the case, and not having done so, respondent was not required by law to settle and sign a bill of exceptions; that the law required respondent to certify all of the evidence introduced upon the trial, and that respondent was ready and willing to sign same when presented. The evidence was not taken down by a shorthand reporter at the trial, and there is, consequently, no transcript thereof.

While it is the usual procedure, in these later days, for the evidence to be taken in shorthand at the trials of important actions so that for the purpose of appellate proceedings there may be a full transcript of the whole evidence, such course is not indispensable. And even though the evidence may be taken in shorthand, adventitious circumstances may easily arise in which it will not be possible to have the notes transcribed, as for example, where the reporter becomes ill or dies, or, as happened in the case of Freeman v. Traction Company, 98 W.Va. 311, 128 S.E. 129, in the trial of which action the writer of this opinion presided as trial judge, the shorthand notes became lost after the trial had been concluded. In all such circumstances, or in a case where no shorthand notes are taken, a statement of the facts presented by the evidence will ordinarily suffice for appellate proceedings on questions involving the evidence. The provision of section 9 chapter 131 of the Code, that, "if the action or opinion of the court be upon any question involving the evidence or any part thereof, either upon a motion for a new trial or otherwise, the court shall certify all the evidence...