Edgell v. Conaway
| Decision Date | 01 November 1884 |
| Citation | 24 W.Va. 747 |
| Parties | EDGELL v. CONAWAY. |
| Court | West Virginia Supreme Court |
Submitted Jun. 12, 1884.
1. A court will not pass upon the constitutionality of a statute unless a decision upon that very point is necessary to the determination of the case. (p. 749.)
2. The general rule, is that where a bill of exceptions claims, that illegal evidence was admitted, or that the verdict of the jury was contrary to the evidence, and then proceeds to set out the facts to show it to be so, it must not rest there but go further and allege that the facts so stated were all that were proved in the case or on that point, or some equivalent allegation, so that the court may fairly conclude that there were no other facts bearing on the question. But if without such allegation the record clearly shows that fact, then such allegation is not required. (p. 750.)
3. If the preliminary evidence offered to show the admissibility of other evidence tends to prove such admissibility, it is not the province of the court to pass upon the sufficiency of such evidence; this is a question for the jury. (p. 752.)
4. Where a portion of a written document is proven to have been destroyed and the other portion lost or in the hands of a nonresident of the State, and there is no suggestion that such destruction was fraudulent, the contents of such document may be proven by secondary evidence. (p. 754.)
5. In such case it is not necessary to exhaust all possible evidence of the loss or destruction of such document. The sufficiency of such evidence is a preliminary question addressed to the discretion of the court; and the object of it is merely to establish a reasonable presumption of the loss or destruction. (p. 754.)
The facts of the case appear in the opinion of the Court.
R S. Blair for plaintiffs in error.
I N. McNight and D. F. Pugh for defendants in error.
Action originally brought before a justice of Taylor county by Isaac M. Edgell and George Lamp against C. I. Conaway, Thomas Smith, F. F. Furbee, James B. Smith, Jonathan Ankrom, M. R Ankrom, W. M. Stealey and D. M. Smith, partners as the Middle Island Tie Company, to recover two hundred and ninety-nine dollars and eighty cents for money due on contract for seven hundred and thirty-seven crossties and five dollars for drifting said ties. The defendants pleaded orally that they were not indebted and the case was tried by a jury of six before the justice and a verdict returned and judgment entered for the defendants and the plaintiffs took the case by appeal to the circuit court of said county where it was docketed. The defendants, on affidavit filed, moved the court to change the venue which motion the court overruled and the case was tried before a jury of six jurors who were sworn " to try the matters in difference between the parties." A verdict was found for the defendants and, on August 28, 1883, the court entered judgment against the plaintiffs for costs and dismissed their appeal. From this judgment the plaintiffs obtained a writ of error to this Court.
The defendants in error ask us to dismiss this writ of error, regardless of the merits, for the want of jurisdiction to hear it. They claim that as this case was once tried by a jury before the justice, they cannot, under section 13 of article III of the Constitution as amended in 1880, have the same re-tried, except by writ of error " according to the rules of the common law." To sustain this position we would have to decide section 169 of chapter 8 Acts 1881, to be unconstitutional and void. This we are not at liberty to do, or even to pass upon the question of the constitutionality of the statute, unless a decision upon that very point is necessary to the determination of the case--Cooley's Const. Lim. 163; Hoover v. Wood, 9 Ind. 287; Frees v. Ford, 6 N.Y. 177. Unless our decision in this case operates as a reversal of the judgment of the court below, the defendants in error will not be prejudiced by this writ of error and whether or not the said statute is unconstitutional is immaterial to their rights in the case. The right of the defendants in error to raise and insist upon that question depends upon whether or not there is error in the record aside from that question. We shall, therefore, proceed to consider first the errors assigned by the plaintiffs in error and if they are not sustained it will be unnecessary and improper to consider the said constitutional question.
Three bills of exceptions were taken by the plaintiffs in error during the trial, the first of which was to the action of the court overruling the motion for a change of venue. This exception was not relied on by counsel in this Court and, I think, it was properly abandoned as it is entirely without merit.
The second bill of exceptions state that, after the plaintiffs had closed their case the defendants recalled the plaintiff Edgell and propounded to him the questions:
Thereupon the defendants, by their counsel, propounded the following question to one Jonathan Ankrom, a witness of the defendants then on the stand, who was on the witness stand at the time of the propounding of the several questions hereinbefore set forth to the plaintiff Edgell:
" What conversation had you with Lloyd Edgell, the son of the plaintiff, in Parkersburg, in regard to said ties?"
To asking and answering of the said question, the plaintiffs, by their counsel, objected, but the court overruled the said objection and permitted the question to be answered, the answer being as follows:
This conversation occurred between Conaway and Lloyd Edgell in presence of the witness, in the absence of plaintiffs; to which ruling of the court in permitting said question to be propounded and answered, as well as to the refusal of the court to exclude said evidence from the jury, the plaintiffs, by their counsel, excepted.
The plaintiffs in error insist that this evidence was improper, because it was not proven that Lloyd Edgell was the agent of the plaintiffs. On the other hand the defendants in error claim (1) that the bill of exceptions does not expressly or by implication show that there was not other evidence adduced on the trial to prove such agency and that, therefore, the bill of exceptions is insufficient; and (2) if said bill should be held sufficient, it does not establish error of which the plaintiffs in error can complain.
1. It is undoubtedly an established rule, arising from public necessity and convenience, that every fair legal presumption is in favor of the judgment of the court below; and, therefore, upon bills of exceptions the courts hold that they do not succeed in the point of law they assume until they, affirmatively, show enough facts to overthrow every such legal presumption in favor of the correctness of the ruling they assail; for the maxim is, stabit praesumptio donce probelur in contrarium-- Shrewsbury v. Miller, 10 W.Va. 115; Rose v. Miller, 21 Id. 291.
The general rule is, and it is always the safer practice to follow it strictly, that where a bill of exceptions claims that illegal evidence was admitted, or that the verdict was contrary to the evidence, and then proceeds to set out the facts to show it to be so, it must not rest there, but proceed and allege that the facts so stated were all that were proved in the case or on that point; or some equivalent allegation or showing from which the court can fairly draw that conclusion. But, without such allegation, if it clearly appears or can be fairly inferred from the...
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