Cable Company v. Mathers et al.

• Court: West Virginia Supreme Court
• Writing for the Court: WILLIAMS, J.
• Citation: Cable Company v. Mathers et al., 72 W.Va. 807 (W. Va. 1913)
• Decision Date: 14 October 1913
• Parties: Cable Company v. Mathers et al.

72 W.Va. 807

Cable Company

v.Mathers et al.

Supreme Court of Appeals of West Virginia.

Submitted June 12, 1912.

Decided October 14, 1913.

1. Exceptions, Bite of Sufflicency Stenographer's Transcript.

A skeleton bill of exceptions, incorporating into it the stenographer's transcript of the testimony by any description or designation thereof that makes its identification reasonably certain, is sufficient, (p. 808).

2. Justices of the Peace Depositions Rig-fit to Use on Appeal.

Depositions regularly taken and read as evidence on the trial before a justice of the peace, may be read in the circuit court on appeal, (p. 809).

3. Depositions Objections Time for Making.

It is too late, after trial begins, to object to the reading of depositions on any ground that can be cured by a retaking, (p. 809).

4. Principal and Agent Liability of Principal "Trader."

To constitute one a trader, within the meaning of Sec. 13, Ch. 100, Code (1906), he must be both a buyer and a seller, or a barterer of goods, for profit, (p. 810).

5. Same.

One to whom pianos and organs are consigned by the owner, to be sold on a commission, who buys and carries no goods for sale on his own account, is not a trader within the meaning of said section, (p. 810).

0. Same Consignment of Goods Liability for Debts "Barterer." That such consignee occasionally accepted old musical instruments in part payment for new ones, does not constitute him a barterer within the meaning of said section, (p. 811). 7. Same Principals Goods Liability for Agent's Debts.

Property of another in the hands of an agent who Is not himself a trader, for sale on a commission, is not liable for the agent's debts, (p. 811).

Error to Circuit Court, Wood County.

Action by the Cable Company against J. W. Mathers and others. Judgment for defendant and plaintiff brings error.

Reversed and Remanded.

E. L. Coleman, for plaintiff in error.

F. H. McGregor and Kreps & Russell, for defendant in error.

Williams, Judge:

This writ of error is to a judgment of the circuit court of Wood county rendered, on appeal from a justice, in favor of a number of attaching creditors of A. L. Barker, and against the Cable Company, a corporation, claimant of the property attached. After the suits were brought and attachments levied upon certain organs and pianos in a building in the city of Parkersburg, formerly occupied by said Barker, the Cable Company appeared before another justice and claimed the attached property. The justice decided the question in favor of the Cable Company, and directed the constable to turn the property over to it. Defendants appealed the cases to the circuit court, and, the issue in each case being the same, the parties agreed to submit all of them to the jury to be tried together, which was done. But before passing to a discussion of the merits of the case, it is necessary to determine a preliminary question raised in brief of counsel for defendant in error, which is, whether bill of exceptions Xo. 1 sufficiently identifies the evidence to make it a part of the record. It is what is commonly called a skeleton bill, and was signed by the judge in vacation, within thirty days after the adjournment of the term, and was made a part of the record by a vacation order. It certifies, in part, as follows, viz: "All the proceedings on said trial, and all the evidence considered by the court were reduced to writing and are embodied in the transcript made by John T. Harris, official stenographer of the court, and referred to therein, and styled 'Transcript of Testimony/ and filed in these causes and all the said rulings and decisions of the court, and all of the exceptions taken and contained in said transcript of testimony, are made part of the record and this bill of exceptions, with the same effect and intent as though the same were fully and at large herein copied as a part of this bill of exceptions Xo. 1." The words transcript of testimony, by which the transcript of evidence is identified, do not appear at the beginning of the evidence; but instead of those words are the words "Testimony on behalf of the plaintiff." Then following this heading, and between it and the certificate of the official stenographer, is found the testimony of witnesses, which appears to have been taken in the case. We do not think the omission of the words transcript of testimony is fatal, because the stenographer's transcript is sufficiently identified by its character and by reference in the bill of exceptions to the stenographer's certificate appended to the transcript. From the character of the evidence we see that it applies to this case; and the judge's certificate designates it as having been reduced to writing by John T. Harris, official stenographer of the court. We find, at the end of the transcript, a certificate signed by John T. Harris, as official stenographer, styling this case and certifying that the evidence was taken in the trial of it. We are morally certain that the transcript is the same mentioned in the judge's certificate, or skeleton bill of exceptions; and, therefore, hold that it is properly a part of the record. Marshall v. Stalnalcer, 70 W. Va. 394, and Darnell v. Wilmoth, 69 W. Va 704.

It is also urged that certain other papers appearing in the record, following the certificate of the official stenographer, are not parts of the record. They are what purport to be copies from the docket of the justice who tried the attachment suits, out of which the present suit respecting the ownership of the attached property and its liability for A. L. Barker's debts, grew. The justice testified as a witness in this case, and identified these papers; it appears that they were offered, as parts of the record, in the trial of this case in the circuit court. The marks these papers bear, as "J. H. B. Xos. 1, 2, 3, 4," etc., correspond with the designation the witness gave to them in his testimony. This, we think, is quite sufficient to identify them as copies of the same papers admitted at the trial. It was not necessary to read them to the jury, because they were official papers and did not present a question to be determined by the jury.

The court permitted certain depositions that had been taken and read before the justice of the peace, to be read as evidence on the appeal, over objection of defendant, and this is crossassigned as error. These depositions are identified by E. L. Coleman in his testimony, as the same that were read at the trial of the case before the justice. Therefore, assuming that they were duly taken and properly certified, they were admissible as...