Dillard v. Dunlap

• Decision Date: 30 September 1887
• Citation: 83 Va. 755,3 S.E. 383
• Court: Virginia Supreme Court
• Parties: Dillard and another v. Dunlap. Karn and another v. Same.

3 S.E. 383

83 Va. 755

Dillard and another

v.Dunlap.

Karn and another

v.Same.

Supreme Court of Appeals of Virginia.

September Term, 1887.

1. Exceptions, Bill op—Refusal to Sion—Mandamus.

Upon a verdict for defendant, counsel for plaintiffs moved to set the same aside, and for a new trial. The court overruled the motion, whereupon counsel for plan-tiffs moved the court to certify the facts proved. This the court refused, whereupon counsel for plaintiffs asked the court to certify the evidence. This the court agreed to do, provided counsel on both sides should agree on a statement of the evidence. Defendant's counsel being engaged in other causes, plaintiffs' counsel remained in attendance on the court for two days, and on the third day renewed his motion for new trial on the ground of after-discovered facts. This was overruled, and thereupon counsel for both sides withdrew, with notice to the court, to prepare a statement of the evidence. Upon their return, in an hour, they found that the court had in the meanwhile adjourned for the term, and entered final judgment, Hrld.that mandamus would lie to compel the trial judge to certify either the facts proved or the evidence.

2. Same.

A nisi prius court cannot require, as a condition of certifying the evidence in a case for appeal, that the counsel on both sides shall agree upon a statement of the

evidence.

3. Same.

Mere lapse of memory is no reason for a trial judge to absolutely refuse to certify the evidence in a case, preparatory to appeal.

Error to circuit court, Amherst county; G. A. Wlngfield, Judge.

Richardson, J. The record presents the following very remarkable case in practice:

At the October term, 1884, of the circuit court of Amherst county, there were pending two cases at law on attachments, —in one of which James S. Dillard and W. E. McCorkle, partners as Dillard & McCorkle, were plaintiffs, and Thomas Dunlap defendant; and, in the other, David Karn and John Hick-son, partners as Karn & Hickson, were plaintiffs, and said Dunlap defendant. Such proceedings were had that said two cases came on and were heard together at the October term, 1884, —to-wit, on the fifteenth day of October, 1884, —of said circuit court. The jury found a verdict for the defendant in each of said cases; and thereupon the plaintiffs, respectively, moved the court to set aside said verdicts, and grant a new trial, which motion the court overruled; and thereupon the counsel for the plaintiffs in said causes, with notice to opposing counsel and to the court, proceeded to prepare a statement of thefacts proved, for the purpose of having the same certified by a proper bill of exceptions by the court; that, owing to the fact that the defendant's counsel were arduously engaged in important cases coming on for trial during the sixteenth and seventeenth days, (Thursday and Friday,) the plaintiffs' counsel remained in attendance on the court till the following Saturday, (the eighteenth October,) and on the morning of that day, on additional grounds, after discovered, again moved the court to set aside said verdict, and grant a new trial, which motion the court also overruled. Thereupon the plaintiffs, respectively, by their counsel, excepted to said ruling, and tendered their bill of exceptions, and asked the court to certify the facts proved. But the judge of said court, the Honorable G. A. Wingfield, refused to certify the facts, and to sign the bill of exceptions, as tendered; and thereupon the said plaintiffs, by counsel, moved said court to certify the evidence, which motion the court also refused, except on the terms that the counsel for plaintiffs and the defendant should agree upon a statement of the said evidence; and thereupon the counsel for both plaintiffs and defendant withdrew from the court-room for the distinctly announced purpose of agreeing upon and preparing a statement of the evidence. The work thus begun was diligently prosecuted, the counsel on each side preparing a statement of the evidence as they respectively understood it, and, failing in some respects to agree, counsel repaired to the court-room to submit to the court for settlement and certificate their respective statements, when, to their surprise, they found that, within an hour after their departure from the court-room to prepare a statement of the evidence, the court had signed the orders, and adjourned for the term. In this anomalous state of things, the said plaintiffs, by their counsel, presented to this court, then in session at Richmond, a petition substantially setting forth the facts aforesaid, and praying for a rule against the Honorable G. A. Wingfield, the then judge of the said circuit court of Amherst county, returnable before this court at Richmond, requiring said judge to show cause, "if any he can, " why a mandamus should not issue to compel him to certify the evidence in said causes, and to sign any proper bill of exceptions that may be presented in said causes, so that the proceedings therein might be brought by proper proceedings before this court to be further considered. On the fifteenth January, 1885, this court awarded the rule against the Honorable G. A. Wing-field, judge as aforesaid, according to the prayer of the petition above referred to; and it seems that either on the award of the rule, or on the service thereof, the said judge agreed with the counsel for the plaintiffs in these causes that he would certify the evidence therein as required; and thereupon the following consent order was entered by this court, at its place of session at Richmond:

"In the supreme court of appeals, held at the state court-house in the city of Richmond, on Thursday, the seventh day of May, 1885. In the matter of the petition of J. S. Dillard and W. C. McCorkle, late partners as Dillard and McCorkle, and David Karn and John Hickson; partners as Karn & Hickson, for a writ of mandamus to command Hon. G. A. Wingfield, judge of the circuit court of Amherst county, to certify the evidence in the causes lately pending in the said court, in which the said petitioners were plaintiffs, and Thomas Dunlap was defendant.

"This day came, as well the petitioners, by counsel, as the counsel representing the defendant, in the circuit court, and by consent of said parties it is ordered that the judge of the circuit court of the county of Amherst may proceed to certify the evidence upon the trial of the said causes at the October term, 1884, of said court, and to sign such proper bill of exceptions as may be presented by counsel for the petitioners, in accordance with the requirements of the said petition; the same to have full legal validity and force as if the same had been done at said term of the court, or been signed in obedience to the mandate of this court, after the hearing of said cause on the ruleawarded herein, on the fifteenth of January, 1885, and by like consent the said rule is discharged. George K. Taylor, C. C."

It seems that, after the above consent order of this court, considerable delay occurred for want of the co-operation of counsel for the defense in the circuit court; but finally the counsel for the plaintiffs prepared a bill of exceptions, setting forth the evidence at the trial of these causes in the circuit court, which was shown to opposing counsel, and, after due notice, was presented to Hon. G. A. Wingfield, judge as aforesaid, to be signed, sealed, and made a part of the record in these cases. But the said judge refused to certify the evidence as required; and, in lieu thereof, certified as follows:

"In Vacation of Amherst Circuit Court. October 5, 1885.

"...