Board of Education v.Parsons.

• Decision Date: 20 September 1884
• Citation: 24 W.Va. 551
• Court: West Virginia Supreme Court
• Parties: Board of Education v. Parsons.

24 W.Va. 551

Board of Education v.Parsons.

Supreme Court of Appeals of West Virginia.

Submitted June 17, 1884

Decided September 20, 1884.

1. While it is the usual practice in cases, where a jury is waived and the case submitted to the court in lieu of a jury, if the party against whom the judgment is rendered is dissatisfied therewith, to except to the judgment and have the court certify the facts proved, yet it is not necessary for the record to show, that the judgment was excepted to; it is sufficient if the facts appear upon the record by a certificate of the court or otherwise, (p. 553.)

2 In a case tried by the court in lieu of a jury the judgment may be reviewed by the the Appellate Court, if the facts appear in the record, though not by bill of exceptions, (p. 553.)

3. In such case the Appellate Court must regard it as upon a

demurrer to evidence, considering the plaintiff in error as demurrant, (p. 553.)

4. All questions involved in the former writ of error are res judicata.

(p. 554.)

Johnson, President, furnishes the following statement of the case:

This case was formerly before this Court and the judgment of the court below was reversed, and the case was remanded for a new trial. It was a notice against the late sheriff and his sureties, and the circuit court quashed the notice, and we held, reversing the judgment, that the notice was good (22 W. Ya. 308). The case was tried by the circuit court of Tucker county on December 22, 1883, being submitted to the court in lieu of a jury, and a judgment was rendered in favor of the plaintiff against the defendants for two hundred and forty-two dollars and seventy-one cents with interest from that day and costs. There was no exception to the judgment, but the evidence wTas all certified. In the bill of exceptions it appears that the defendants objected to the introduction of the bond, which the court admitted against his objection and he excepted. To the judgment the defendant, Parsons, obtained a writ of error.

A. B. Parsons for plaintiff in error.

W. B. Maxwell for defendant in error.

Johnson, President:

The counsel for defendant in error insists, that, as there was no exception to the judgment, this Court cannot consider whether or not the judgment is sustained by the evidence.

While it is the usual practice in cases where a jury is waived, and the case is submitted to the court in lieu of a jury, if the party, against whom the judgment is rendered, is dissatisfied therewith, to except to the judgment and have the court certify the facts proved, yet it is not necessary for the record to show that the judgment was excepted to; it is sufficient if the facts appear upon the record by a certificate of the court or otherwise. In such case the Court will inspect the record and either affirm or reverse the judgment, as the law requires. It seems to be a useless formality to except to a judgment of a court. An exception might just as well be taken to a decree in chancery. In a law case tried by the court in lieu of a jury the judgment will be reviewed by the appellate court, if the facts appear in the record. (Mitchell v. Baratta, 17 Gratt. 445; Bearing v. Bucket, 18 Gratt 426.)

It is claimed that notice to Parsons of the order requiring him to pay the school money in his hands to his successor was not proved. Where a case is tried before a court in lieu of a jury, and the whole evidence is spread upon the record, the appellate court must regard the case as upon a demurrer to evidence, considering the plaintiff in error as the demurrant. (Claflin v....