Coal & Coke Ry. Co v. Joyce

• Decision Date: 15 December 1905
• Citation: 58 W.Va. 544,52 S.E. 498
• Court: West Virginia Supreme Court
• Parties: COAL & COKE RY. CO. v. JOYCE et al.

52 S.E. 498

58 W.Va. 544

COAL & COKE RY. CO.

v.JOYCE et al.

Supreme Court of Appeals of West Virginia.

Dec. 15, 1905.

Exceptions, Bill or—Sufficiency.

The skeleton bill of exceptions relied on in this case for the purpose of making the evidence a part of it does not do so, and the evidence is not a part of the record, under the authority of the cases of Parr v. Currence, 52 S. E. 496, 58 W. Va. ——, Dudley v. Barrett et al., 52 S. E. 100, 58 W. Va.——, Tracy's Adm'x v. Coal Co. (W. Va.) 50 S. E. 825. and McKendree v. Shelton, 41 S. E. 909, 51 W. Va. 516.

(Syllabus by the Court.)

Error to Circuit Court, Randolph County.

Action by the Coal & Coke Railway Company against Thomas W. Joyce and others. Judgment for plaintiff, defendants bring error. Affirmed.

W. B. Maxwell, for plaintiffs in error.

C. W. Dailey and E. D. Talbott, for defendant in error.

COX, J. Thomas W. Joyce, Margaret Caveney, and Ann Joyce complain of an order of the circuit court of Randolph county, made in a proceeding to condemn land for railroad purposes, in which they are defendants, sustaining the motion of the applicant, Coal & Coke Railway Company, to set aside the verdict of the jury therein and granting it a new trial.

The question whether or not there is error in this order involves a consideration of the evidence. This record presents another case of a fatal skeleton bill of exceptions, whereby the evidence is not made a part of it, and therefore not a part of the record. The original bill of exceptions, which is claimed to make the evidence a part of it, was brought here by certiorari. It is a skeleton bill. The parenthetical direction to the clerk therein contained is as follows: "(Here insert the evidence as certified by the official stenographer, which evidence is now here referred to and directed to be here inserted.)" It does not appear that the evidence was annexed to the bill or so marked by letter, number, or other means of identification mentioned in the bill, or so described in the bill as to leave no doubt, when found in the record, that it is the evidence referred to in the bill. The bill of exceptions is therefore insufficient to make the evidence a part of it, or of the record. The statement copied in the record, purporting to be questions and answers of witnesses on the trial, has appended to it the following certificate:

"Grafton, W. Va., Jan. 29, 1904. I, W. H. Pilson, former stenographer of the 3d judicial circuit hereby certify that the foregoing evidence is a...