Barker et als. v. Stephenson et als.
| Decision Date | 10 May 1910 |
| Citation | 67 W.Va. 490 |
| Court | West Virginia Supreme Court |
| Parties | Barker et als. v. Stephenson et als. |
Exceptions, Bill of Signing Time.
1. The occurrence of a regular or special term of a circuit court within the thirty days after adjournment of the last preceding term does not cut off the time given the court, by section 9, of chapter 131, Code 1906, to make up and sign bills of exception.
2. Same.
The thirty days after adjournment of the term given the court by said section 9, chapter 131, Code 1906, to make up and sign bills of exception means thirty days after adjournment of the term at which final judgment is pronounced.
4. TkoveR and Conveksion Evidence Directing Verdict.
A case in which the trial court erred in excluding plaintiff's evidence and directing a verdict for defendant.
Error to Circuit Court of Kanawha County.
Action by J. Q. Barker and others, partners, as the Kanawha Hardwood Company, against Samuel Stephenson and others. Judgment for defendants, and plaintiffs bring error.
Reversed.
S. B. Avis, J. W. Kennedy, and Morgan Owen, for plaintiffs in error.
Chilton, MacCorMe & Chilton, for defendants in error. Miller, Judge:
Plaintiff, as Kanawha Hardwood Company, sued defendants in trover and conversion for the value of about 250, 000 feet of lumber, which, they allege, while they were in the actual possession thereof and in the act of branding and inspecting the same, defendants with force and arms and without their consent and against their protest seized, carried away and converted to their own use, damaging them in the sum of $15,000.
On the trial, concluded March 17, 1906, defendants offering no evidence, the court below, on motion of defendants excluded the plaintiffs' evidence and directed a verdict for defendants. Plaintiffs excepted, and moved the court to set aside said verdict and grant them a new trial, which motion was overruled, they again excepted. No judgment, however, was pronounced on the verdict until the September term following, when on October 6, 1906, plaintiffs moved the court to arrest the judgment. This motion being overruled, they again excepted, and final judgment was then pronounced that plaintiffs take nothing by their action, and that defendants go hence without day and recover their costs. Plaintiffs again excepted, and were given thirty days from the rising of the court within which to prepare and have signed proper bills of exception.
A term of court having been begun according to law before the thirty days expired, the bills of exception were not signed and made a part of the record in vacation, but the record shows that by an order entitled in the cause, entered December 12, 1906, in term, plaintiffs tendered their bills of exception numbered one and two, which were signed, sealed and certified, and properly identified and ordered to be made parts of the record.
Defendants interpose two objections here to a consideration of the case upon its merits. First, that judgment of March 17, 1906, directing a verdict, and overruling plaintiffs' motion to set aside that verdict and grant them a new trial, was a final judgment, and that no bills of exception having been taken or signed during that term, or within thirty days after the adjournment thereof, the court was without jurisdiction thereafter to certify the evidence, and make the same a part of the record. Second, that if wrong in their first contention, the statute, section 9, chapter 131, Code 1906, giving the court in vacation, within thirty days after adjournment of the term, authority to make up and sign bills of exception and certify the same, is exclusive, and that a special or a regular term occurring within thirty days after such adjournment cuts off the time given by statute and precludes the court at a succeeding special or regular term from any action on such bills of exception.
The first proposition is specifically negatived by numerous decisions of this Court: Damron v. Ferguson, 32 W. Va. 33; Hannah v. Bank, 53 W. Va. 82; Bank v. Bee, 60 W. Va. 386; DeArmit v. Town of Whitmer, 63 W. Va. 300; Kirk v. Camden Interstate By. Co., 66 W. Va. 486 (66 S. E. 683). The judgment of March 17, 1906 was not final. It contained no judgment of nil capiat; therefore no writ of error would lie thereto. Kirk v. Camden Interstate By. Co., supra, citing Riley v. Jarvis, 43 W. Va. 44; Parsons v. Snider, 42 W. Va. 517; Bushier v. Cheuvront, 15 W. Va. 479. The statute, section 1, chapter 135, Code 1906, gives no right to a writ of error in cases like this except to a final judgment. The ninth clause thereof does give a writ of error to a judgment granting a new trial, but none is given from a judgment or order overruling a motion for a new trial. Until there has been a final judgment or decree, from which an appeal or writ of error will lie, the whole matter of controversy remains in the breast of the court. Wickes v. B. & O. B. B. Co., 14 W. Va. 157, 165, citing 1 Bob. (Old) Prac. 638, and 3 Tho. Co. Lit, 323. Until such final judgment a complete trial has not been had. Section 2, chapter 159, Code 1906, provides that "a person indicted for felony shall be personally present during the trial therefor," In Stale v. Stephenson, 64 W. Va. 392, 399, following State v. Parsons, 39 W. Va. 464, we held this meant from arraignment to judgment inclusive.
But it is argued on the authority of Crowe v. Corporation of Charles Town, 62 W. Va. 91, and Jordan v. Jordan, 48 W. Va. 600, that the trial was had at the term at which the order of March 17, 1906 was entered, and that according to these decisions the court was without jurisdiction, except during that term or within thirty days after its adjournment, to make up and sign bills of exception. The first point of the syllabus of Crowe v. Charles Town does say: "Bills of exceptions are required to be signed at the term at which the trial is had, or within thirty days after the adjournment thereof, and after the expiration of such time, there is no jurisdiction to sign such bills." But Jordan v. Jordan, as do many previous decisions,.decides that bills of exceptions may be signed, either during the term at which final judgment is rendered or within thirty days after its close. State v. Strayer, 58 W. Va. 676; Welty v. Campbell, 37 W. Va. 797, 802; State v. McGlumphy, Id. 805; Griffith v. Corrothers, 42 W. Va. 59. The case of Crowe v. Charles Town does not mean to depart from the prior decisions. Manifestly it was intended simply to reaffirm the rule of the previous decisions. "At the term at which the trial is had" according to Jordan v. Jordan, and the other decisions, means at the term at which final judgment was rendered.
The second proposition has been fully negatived by two decisions at the present term, not yet officially reported, namely, Layne v. The C. & O. By. Co., 66 W. Va. 607, and Jacobs v. Williams, 67 W. Va 377. Point one of the syllabus of the first ease holds: "Bills of exception may be signed, certified and made a part of the record of a trial, at any time within thirty days after the adjournment of the term at which the judgment in the action was rendered, either in vacation or in a special or regular subsequent term of the court, occurring within said period of thirty days." Point four of the syllabus of the latter case is as follows: We must dispose of the case, therefore, on its merits.
Did the court err in excluding the plaintiffs' evidence and directing a verdict for defendants? The lumber in controversy, or that which it represents, was manufactured by defendants from timber taken from a tract of land originally containing something over ten thousand acres. This tract was in 1866, by decree of the Federal court, partitioned among the owners, five thousand acres thereof falling to those under whom defendants claim, and a triangular piece containing, exclusive of claims of prior occupants, about 1320 acres, and designated on the plat and in the record as the "Cole and Chapman" tract, going to Maria Byrne, under whom plaintiffs claim. The controversy here does not seem to involve title, but the true location of the original dividing line between the Byrne, or Cole and Chapman 1320 acres, and the five thousand acres, designated on the plat of surveyor Mathews, who made the survey in the partition suit, as the line "F. L. D." Mathews was a witness for plaintiffs on the trial and was examined and cross-examined with reference to the true location of this line as reported to the court in said partition suit. He proved what seems to be conceded, that his report called for eight dogwoods at the corner at "F"; "thence north 33° west 575 poles crossing same branch of Coal Fork to a white oak and black oak in a line of the Banks survey at D." Mathews swears positively that the eight dogwoods found on the ground by Johnson, one of plaintiffs' vendors, from the information furnished by him, and afterwards shown to him, are the identical dogwoods called for in his report in the partition suit, and are located on the ground at the point claimed by plaintiffs as the corner at "F". Other witnesses, including Johnson himself, corroborate Mathews on this material fact. It is conceded that if this line is where plaintiffs claim it, this lumber, or that which it represents, was the product of timber belonging to them or to Burdett Brothers and Johnson, their immediate vendors. Evidence was brought out on...
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