Blevins v. May, 13481
| Decision Date | 04 March 1975 |
| Docket Number | No. 13481,13481 |
| Citation | 212 S.E.2d 85,158 W.Va. 531 |
| Parties | Estel BLEVINS v. Alvis MAY. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
'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 Co. v. Stone Construction Co., 151 W.Va. 439, 152 S.E.2d 721.
George B. Fleshman, Ashland, Ky., for appellant.
This is an appeal by Estel Blevins, the plaintiff below, hereinafter referred to as the appellant, from a final judgment of the Circuit Court of Wayne County entered September 20, 1973 wherein the Court overruled the appellant's motion for a new trial. This Court granted an appeal on June 3, 1974 and the case was submitted for decision on February 4, 1975 upon the record and brief filed on behalf of the appellant. No appearance was made on behalf of Alvis May, the defendant below and hereinafter referred to as the appellee.
The record in this case is meager, and it is difficult to determine what disposition should be made of this appeal. The complaint sounded in contract for labor performed and materials furnished by the appellant to the appellee. The answer filed by the appellee admitted there was a contract between the parties but that the money sued for had been paid by the appellee. The appellee also filed a counterclaim against the appellant alleging that the appellant had not performed the contract properly.
A jury was impaneled and sworn and the case proceeded for trial. The appellant testified briefly and referred to a contract signed by a third party but not the appellee. Apparently, the appellant was not allowed to explain his testimony and a mistrial was declared by the trial judge and the jury discharged. An order was entered on August 4, 1973 dismissing the case because there was no contract between the appellant and the appellee and there was no privity between the appellant and the appellee. An order was entered by the trial court on August 29, 1973 reciting that there was no written contract between the parties and again dismissed the action as well as the counterclaim. Another order was entered on September 20, 1973 sustaining a motion made by the appellant's counsel to enter the order prepared by appellant's counsel but overruled a motion for a new trial made by appellant's counsel based on after-discovered evidence.
The appellant contends on this appeal that the trial court erred in finding that there was no written contract between the appellant and the appellee and that there was no privity between the parties.
Apparently, the trial court held a hearing without a jury after the mistrial was declared and the jury discharged but the record contains no transcript of any evidence taken before the court at such hearing. The orders, which are confusing, indicate there was no written contract between the parties. If the appellant furnished labor and materials on a house owned by the appellee, as indicated in the complaint and apparently admitted in the answer, such contract would not have to be in writing.
There was no finding of facts and...
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Sommerville, Matter of
...168 W.Va. 108, 282 S.E.2d 288 (1981); Parkway Fuel Serv., Inc. v. Pauley, 159 W.Va. 216, 220 S.E.2d 439 (1975); Blevins v. May, 158 W.Va. 531, 212 S.E.2d 85 (1975). For the foregoing reason, we remand this matter to the Board to conduct a further hearing consistent with this Remanded. 1 The......
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E. H., In re
...the court is deciding the issues without a jury. See Parkway Fuel Service, Inc. v. Pauley, W.Va., 220 S.E.2d 439 (1975); Blevins v. May, W.Va., 212 S.E.2d 85 (1975); City of Morgantown v. Town of Star City, 156 W.Va. 529, 195 S.E.2d 166 (1973); Rule 52(a), West Virginia Rules of Civil Proce......
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Young v. Young
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Lyons v. Lyons, 17328
...Syl. pt. 2, South Side Lumber Co. v. Stone Construction Co., 151 W.Va. 439, 152 S.E.2d 721 (1975)." Syllabus, Blevins v. May, 158 W.Va. 531, 212 S.E.2d 85 (1975). Lawrence L. Manypenny, Jordan & Manypenny & Adams, New Cumberland, for Earl Eugen Michael E. Nogay, Sellitti & Nogay, and Donald......