Bowles v. Mitchell

• Decision Date: 27 June 1961
• Docket Number: No. 12061,12061
• Citation: 146 W.Va. 474,120 S.E.2d 697
• Court: West Virginia Supreme Court
• Parties: Jane T. BOWLES v. Imo Jean MITCHELL.

Page 697

120 S.E.2d 697

146 W.Va. 474

Jane T. BOWLES v. Imo Jean MITCHELL.

No. 12061.

Supreme Court of Appeals of West Virginia.

Submitted April 18, 1961.

Decided June 27, 1961.

Syllabus by the Court.

1. 'Courts of record must speak by their records. What is not thereby made to appear does not exist in law.' Syl. Pt. 3, Meyers v. Washington Heights Land Co. et al., 107 W.Va. 632 .

2. In the absence of any record in a trial court reflecting the selection, impaneling or swearing of a jury, the return of a verdict, or the acceptance of a verdict by the trial court, it is reversible error to attempt to enter a valid judgment based upon a fugitive paper supposedly constituting a jury verdict.

3. Where the record affirmatively shows that the necessary prerequisites for a valid judgment did not occur in the trial court, the attempt to enter such judgment in the case is reversible error.

4. The presumption of regularity in judicial proceedings is rebutted where the record affirmatively discloses the absence of such regularity.

Mahan, White, Higgins & Graney, Fayetteville, for plaintiff in error.

Laird, Thrift & Hamilton, Pat R. Hamilton, Fayetteville, for defendant in error.

BROWNING, Judge.

Jane T. Bowles, plaintiff, instituted this action in the Circuit Court of Fayette County against the defendant, Imo Jean Mitchell, for the alleged alienation by the defendant of the affections of plaintiff's husband, Wally Bowles. A judgment in favor of the plaintiff in the amount of $15,000 was entered by that court on January 21, 1960, to which this Court granted a writ of error on July 18, 1960.

Twenty-one assignments of error are made in this Court, foremost of which, inasmuch as a determination favorable to the plaintiff in error will require a reversal of the case and obviate any discussion of the other assignments, is that the trial court erred in entering 'judgment' for the plaintiff 'for the reason that there was no verdict of the jury recorded and made a part of the record by any order of the Court, or otherwise, no showing that the jury was properly impaneled or examined on its voir dire, or that said jury was duly sworn, and that there was no verdict of the jury in the record upon which the Court below could properly enter any judgment for plaintiff * * *.'

The file in the case discloses: (1) The declaration; (2) a sheet of paper bearing the notation:

'We, the jury, find for the plaintiff, Jane T. Bowles, and against the defendant, Imo Jean Mitchell, and we assess plaintiff's damages at $25,000.00

'Carl Smith, Foreman.'

(3) a sheet of paper bearing thereon the following:

'Jane T. Bowles

'v. Trespass in the Case

'Imo Jean Mitchell

'Special Interrogatories

'If the jury should find a verdict for the plaintiff in this case and assess damages, the following questions will be answered by the jury:

'1. How much of the damages has the jury allowed for compensatory damages, if any? $15,000.00.

'2. How much of the damages has the jury allowed for exemplary or punitive damages, if any? $10,000.00';

(4) an affidavit by Alice Vance, Earl Vance, and Kathryn Vance to the effect that, after 'the case had gone to the jury * * * and before the jury had returned its verdict, * * * the jury returned to the courtroom for some unknown purpose, at which time one of counsel for the plaintiff engaged one of the jurors in conversation for several seconds, the jury returned to its room and 'on the following day the verdict in the case of Jane T. Bowles v. Imo Jean Mitchell was returned.'; (5) an affidavit by L. E. Bullion, the juror involved, explaining the incident as a request by him that the attorney call the juror's wife to inform her that he would be late in coming home, and in which he adds 'that I joined with the other jurors in returning a verdict for the plaintiff in the amount of $25,000.00 * * *.'; (6) an affidavit of Pat R. Hamilton, one of counsel for plaintiff, in which he advances the same explanation of the incident as the juror, Bullion, and categorically denies any misconduct; (7) a memorandum opinion by the trial judge in which he states: 'I must, therefore, regard the verdict, insofar as the punitive damages are concerned as being excessive * * *'; (8) a remittitur by the plaintiff of the $10,000.00 awarded as punitive damages which recites: 'Whereas, by the verdict of the jury in this cause rendered sale jury found a verdict in favor of the plaintiff, Jane T. Bowles, and against the defendant, Imo Jean Mitchell, and assessed the plaintiff's damages at $25,000.00,; and, whereas, the jury aforesaid did in reply to special interrogatories propounded to it by the court in writing answer said interrogatories in writing by saying that the compensatory damages as found by them and by them allowed was $15,000.00 and that the exemplary or punitive damages found by them and by them allowed was $10,000.00 * * *.'; and (9) the 'judgment' of January 21, 1960, which reads as follows:

'This cause came on this day to be further heard upon the proceedings heretofore had herein, including the motion of the defendant to set aside said verdict and to grant to her a new trial, and the Court having heard the argument of counsel thereon and having maturely considered of the same is of the opinion that if the plaintiff grant to the defendant a remittitur and a release of so much of said verdict as was found and assessed by said jury to constitute punitive or exemplary damages as set forth in their findings in response to the special interrogatories submitted to the said jury, to-wit, in the sum of $10,000.00, that the Court should thereupon overrule the motion of the defendant to set aside said verdict and should enter up judgment in favor of the plaintiff in the amount of $15,000.00 upon said verdict. The findings of the Court with relation thereto being set forth in the written opinion dated December 31, 1959, which same, upon motion of counsel, is hereto attached and made a part of the record in this case.

'Thereupon appeared the plaintiff, by counsel, and tendered and asked leave to file her remittitur and release of the punitive or exemplary damages assessed by the said jury in the sum of $10,000.00, which same is in writing and is ordered filed.

'This cause thereupon came on to be further heard upon all the proceedings heretofore had and orders entered herein, including the remittitur aforesaid, and the Court having now maturely considered of all the same is of the opinion that the motion to set aside said verdict should be overruled and the same is accordingly done, to which defendant, by counsel, objected and excepted. It is therefore considered by the Court that the plaintiff do recover of and from the defendant, Imo Jean Mitchell, the sum of $15,000.00 with legal interest thereon from the date of said verdict until paid, together with her costs by her in this behalf expended and to the action of the Court as hereinbefore set forth in entering up judgment as aforesaid, the defendant, by counsel, objected and excepted.

'As to so much of said verdict as is represented by said release and remittitur, to-wit, the sum of $10,000.00, the defendant is acquitted and discharged.'

It will thus be seen that there is no order of the court, as such, reciting the impaneling or swearing in of the jury, their return of a verdict or the court's acceptance of any such verdict. It will also be noted that, of the papers hereinabove mentioned as contained in the file of the case, only the memorandum opinion of the trial court and the remittitur were by order filed and made a part of the record in the trial court. However, appellant, by her Bills of Exception, Nos. 1 and 3, respectively, made 'a part of the record' in this Court the transcript of evidence and the affidavits of Alice, Earl and Kathryn Vance.

The Defendant's Bill of Exception No. 1, the transcript of evidence, contains as a preamble, prior to the introduction of witnesses, the following: 'Be it Remembered that upon the trial of this case, on the 16th day of October, 1959, that being one of the judicial days of the September term, 1959, of said Court, after a jury had been duly impaneled and sworn, the plaintiff, to maintain the issue joined upon her part, introduced the following evidence, * * *.'

In view of the Court's decision upon the controlling question, it is deemed unnecessary to recite the evidence or to discuss the other assignments of error.

As was stated in State v. Underwood, 130 W.Va. 166, 43 S.E.2d 61, 64: 'What is not disclosed by the records of courts of record does not legally exist.' Meyers v. Washington Heights Land Co., 107 W.Va. 632, 149 S.E. 819. The same principle was stated in State ex rel. Bika v. Ashworth, 128 W.Va. 1, 35 S.E.2d 351, 352, in this language: 'The circuit court, being a court of record, speaks only by its record, and what does not so appear does not exist in law.' To properly assess these statements, it is necessary to understand what the word 'record' means as used in these and the other cases cited in the opinions. The record before this Court and the record made in the trial court may not be identical. It is the record made in the trial court that is vital. The record before this Court shows that counsel for the defendant in error designated as pertinent in this case 'the entire record therein, including the evidence, instructions offered by the parties and given or refused by the Court, orders, etc., and excluding only the process issued therein.' The record before this Court further shows that counsel for the...