Danks v. Rodeheaver
| Decision Date | 03 July 1885 |
| Citation | 26 W.Va. 274 |
| Parties | DANKS v. RODEHEAVER et al. |
| Court | West Virginia Supreme Court |
Submitted Jun. 12, 1885.
1. If errors or supposed errors are committed by a court in its rulings during the trial of a case by a jury, the appellate court can not review these rulings, unless, first, they were objected to when made and the point saved and a bill of exceptions taken showing these rulings during the term of the court, and unless, second, a new trial was asked of the court below and refused, and such refusal objected to in the court below, and this appears of record. If either of these essentials is omitted, the appellate court can not review the rulings. It can not review them, unless bills of exceptions were taken to them as above stated, and a new trial was asked and refused, though a bill of exceptions was regu l arly taken to such refusal, and in this bill of exceptions these rulings of the court during the trial are fully stated and it appears, that they were erroneous, and that these erroneous rulings caused the jury to find the verdict, which they did find. Nor can the appellate court review such rulings by the judges during the trial in any case, though they were excepted to when made, and regular bills of exceptions were then taken, if no new trial was asked in the court below and refused, and such refusal objected to, and this be noted in the record. (p. 276.)
2. Core v. Marple, 24 W.Va. 354, approved and also points 2 and 3, in syllabus of State for use, & c. v Phares, 24 W.Va. 657-8.
Green, Judge, furnishes the following statement of the case:
This was an action of ejectment brought in the circuit court of Preston in September, 1880, by Joseph Danks against Isaac Rodeheaver and Ami Frankhouser to recover a certain tract of land in said county described by metes and bounds, and which the plaintiff claims he was possessed of in fee, and on which the defendants entered, and the possession of which they unlawfully withheld to his damage. The defendants pleaded not guilty, and issue was joined on this plea. An order of survey was made by the court. On December 2, 1882, a jury was sworn to try this issue; and on December 4, 1882 they found a verdict for the plaintiff for the land in the declaration mentioned, describing it by metes and bounds; and they further found, that the plaintiff hath title in fee simple to said land, and also found for the plaintiff one cent damages. Thereupon the court rendered a judgment, that the plaintiff recover from the defendants the possession of the premises according to this verdict of the jury together with his damages aforesaid and his costs. During the trial of the case the defendants took two bills of exceptions. The first was to the fact that the court permitted the plaintiff to offer as evidence of his title a certified copy of a deed, which had been transcribed on a record-book of the said county in the office of the clerk of the county court, which deed had been recorded on an acknowledgment thereof before the deputy-clerk of said court in said clerk's office. The second was to the refusal of the court at the instance of the defendant's counsel to instruct the jury " that the deed dated January 12, 1853, did not invest the grantee with the title to the real estate therein described." The record does not show that any motion was made by the defendants for a new trial because of these supposed errors on the part of the court during the trial of the case or for any other reason.
A writ of error and supersedeas was allowed to the judgment of the circuit court in this cause rendered December 4, 1882.
Berkshire & Sturgiss for plaintiff in error.
John Barton Payne for defendant in error.
The first question in this case is: Has the Court jurisdiction to decide the questions arising during the trial of this case, which were made parts of the record by regular bills of exceptions signed by the circuit judge setting out his rulings in the case during the trial before the jury admitting the testimony objected to by the counsel for the plaintiff in error and refusing to grant instructions asked by the plaintiff in error, as the plaintiff in error did not ask the court to grant him a new trial but apparently acquiesced in the verdict of the jury, on which the court below entered up the judgment of December 4, 1882, which is now for the first time complained of in his petition for a writ of error presented to this Court? The writ was awarded by the Court and the question is: Ought not this court to decline to consider these rulings of the circuit court during the trial of the case. If the decision on this Court in State v. Pharse, 24 W.Va. 657 decided last September be followed, the rulings can not be reviewed by this court (syllabus 3 p. 657.) This court shortly before that on June 28, 1884, in the case of Core v. Marple, 24 W.Va. 354 decided also that " when an instruction is given to the jury without objection at the time, and no exception or notice of exception is taken or given before the verdict is returned by the jury, the giving of the instruction can not be a ground for setting aside the verdict and granting a new trial." Much of the reasoning, which sustains either of these decisions, will sustain the other; and on the other hand many of the objections urged against either of these decisions could be urged as objections to the other. So that these two decisions must both be upheld or overthrown. The principle to be deduced from these two cases in 24 W.Va. is that if errors or supposed errors of any sort are committed by a court in its rulings during the trial of a case by a jury, the appellate court can not review these rulings, unless first they were objected to when made, and the point then saved, and a bill of exceptions taken showing these rulings during the term of court, and unless, second, a new trial was asked of the court below and refused, and such refusal objected to in the coure below, and this appears of record. If either of these essentials is omitted, the appellate court can not review these rulings. It can not review them, unless bills of exceptions were taken to them as above stated, even though a new trial was asked and refused, though a bill of exceptions was regularly taken so such refusal, and in this bill of exceptions these rulings of the court during the trial are fully stated, and it appears that they were erroneous and that these erroneous rulings caused the jury to find the verdict they did find. Nor can the appellate court review such rulings by the judge during the trial in any case, though they were excepted to when made, and regular bills of exception then taken, if no new trial was asked in the court below, refused, objected to and this be noted in the record.
We are asked to reconsider the principles settled by these two cases in 24 W.Va., because it is claimed that it is not regarded as a correct principle of practice by the bar of this State, who have considered that these errors of the judge arising during the trial of the case would be reviewed in every case, when the record in any manner showed, that these errors had been committed, and that they were prejudicial to the plaintiff in error, a principle, which, it is claimed, prevails universally in other States. As all the text-books are entirely silent on this subject, it is very natural, that the members of the bar should take up the idea, that this silence was produced by a general admission of the correctness of the principle, on which they claim that the bar of this State had always acted. As this question is a very important one, and so little bearing upon it has been found, we have concluded that we would review the principles settled in these two cases in 24 W. Va.
While the text-writers are silent on this question, yet they state as one of the grounds, on which new trials are granted the misdirection of the judge during the progress of the trial (see for instance Hillard on New Trials, ch. 2, § 3, p. 24 of 2d Edition; ) which would seem to indicate a practice of asking the court below for a new trial because of improper rulings of the judge during the trial; and this would seem to justify the inference, that the asking of such new trial because of such erroneous instruction was proper if not absolutely necessary. If the appellate court could properly review a case because of such erroneous instructions made a part of the record without any new trial having been asked of the court below, it would seem to be useless to ask such new trial for such cause; and the fact, that this practice generally prevails, would indicate a belief on the part of the bar generally, that the appellate court could not review a case because of such erroneous instructions appearing of record, unless there had been a motion made for a new trial. The reason, I presume, why nothing is said by the text-writers directly on the subject is, that most of the reports of cases, wherein it is presumed, that this question arose, are so briefly and imperfectly reported, that it can not be said with any certainty, whether this point arose, and when we conclude, that it did probably arise, the court in their opinion say nothing directly on the subject; and it would be unsafe to draw any inference from their decision in the case, as long as there is uncertainty as to whether bills of exceptions were taken at the trial to erroneous rulings of the court, or whether these erroneous rulings appear only in the bill of exceptions refusing or granting the new trial and it would be equally unsafe to draw any conclusion, where there is an uncertainty whether a motion for a new trial was made. In many of the reported cases these uncertainties exist, it not satisfactorily appearing either from the statement of the...
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