Gilmer v. Sydenstricker

• Decision Date: 04 April 1896
• Citation: 24 S.E. 566,42 W.Va. 52
• Court: West Virginia Supreme Court
• Parties: GILMER. v. SYDENSTRICKER et al.

24 S.E. 566

42 W.Va. 52

GILMER.

v.SYDENSTRICKER et al.

Supreme Court of Appeals of West Virginia.

April 4, 1896.

Trial—Exceptions—When Made—Motion for New Trial—Appeal—Review of Verdict.

1. An exception to an opinion of the court pending a jury trial should be made at the time of its expression, but is not too late if made before the retirement of the jury. An exception for refusal to set aside the verdict and grant a new trial may be made not later than the close of the term.

2. Discussion of motions for new trial.

3. A verdict ought not to be set aside by this court as contrary to evidence where the evidence is conflicting, unless it manifestly appears that it was moved by passion, prejudice, or other evil influence, or is plainly against the clear and decided preponderance of evidence, and its setting aside is called for by the demands of justice.

(Syllabus by the Court.)

Error to circuit court, Greenbrier county.

Action by Samuel Gilmer against O. P. Sy-denstricker & Co. Judgment for plaintiff, and defendants bring error. Affirmed.

A. C. Snyder and W. P. Rucker, for plaintiffs in error.

J. W. Arbuckle and L. J. Williams, for defendant in error.

BRANNON, J. Plaintiffs in error ask us to review the action of the court in refusing to set aside the verdict as contrary to law and evidence, and defendant in error saysthat we cannot review this action, because the bill of exceptions is no part of the record, and, if it be, there was no exception to such action of the court made at the time of such action.

As to the first point. The order in the case refusing a new trial and rendering judgment shows that leave was given the defendants to file a bill of exceptions within 30 days, and that bill shows it was signed and certified within 30 days. I need say no more to prove that the bill is part of the record. But a bill of exceptions is not the exception itself. It is a document that attests or certifies the exception or objection made to the ruling of the court, and if the record shows no exception, or one out of time, the bill is abortive. Then, does the record show that exception was at any time made to the action of the court refusing a new trial? Looking at the order and the bill of exceptions, as both are parts of the record, I see that the order shows a motion to set aside the verdict, that it was overruled, and that judgment was rendered, and that 30 days was given defendants to file a bill of exceptions. This shows that the defendants excepted to some action of the court, else why a bill of exceptions? To what did they except? We may fairly say it was to that action of the court spoken of in that order, the refusal of a new trial. And the certificate of the bill of exceptions is that a motion for a new trial was made and refused, and in immediate connection it goes on to say that the defendants asked the court to grant 30 days in which to file a bill of exceptions to the "rulings of the court." This word ''rulings" in the plural covers all rulings, including that on the motion for a new trial. Thus the record shows that objection was made to the rulings of the court, and that there was no waiver as to them. There must have been such objection or exception, properly speaking, else the court would not have signed a bill to attest them. That there was exception is unquestionably implied, though not positively stated. Wickes v. Railroad Co., 14 W. Va. 157, speaks only plain sense when it says that, while a point decided by the court must be saved, yet, if the fact that it was saved appears from the whole record, "or if facts appear in the record from which it may be fairly inferred or presumed, it is sufficient." The suggestion is made by counsel that the clause in section 0, c. 131, Code, "Any party may avail nimself of any error appearing on the record by which he is prejudiced, without excepting thereto, " dispenses with an exception; but, whatever that clause was designed to accomplish, it has been twice held to dispense only with a bill of exceptions, not with an exception. Perry v. Horn, 22 W. Va. 381. So much (and it is too much) to endeavor to show that exception was taken to the opinion of the court refusing a new trial.

But it is said that the exception was made too late. The bill of exceptions shows that the motion for a new trial was made and re fused August 6th, and on August 7th the defendants asked 30 days time to file a bill of exceptions, and that on August 8th the court added to said order, overruling the motion for a new trial, and giving judgment, the words, "The defendant is granted thirty days in which to file a bill of exceptions." This all took place in term. When does the law require an exception to be made? If the ruling is upon admission or rejection of evidence, or other matter upon a jury trial, it must be before the jury retires. It is generally just at the ruling, but it need not necessarily be just then. If it be before the jury retires, it is time enough, as it notifies the court, and enables it to review and recall any ruling. This seems well settled. Telegraph Co. v. Hobson, 15 Grat. 122; Nadenbousch v. Sharer, 2 W. Va. 285; Robinson v. Pitzer, 3 W. Va. 335; Wickes v. Railroad Co., 14 W. Va. 157. And it seems that as to instructions the exception may be even after the jury retires, if before verdict. Nadenbousch v. Sharer, 2 W. Va. 285; Core v. Marple, 24 W. Va. 354. How is it as to a refusal to set aside a verdict? I should think it not too late at any time during the term. It would seem from Perry v. Horn, 22 W. Va. 381, that an exception for refusal to set aside a judgment may be made during the term. What reason is there in refusing a party privilege to except during the term? Why require it at the instant of the ruling? In this case, on the day after the ruling, the defendants asked time to file a bill of exceptions. They likely excepted before, as the leave to file a bill imports or implies that: but suppose that the first time of exception. It was not too late. We must struggle to save to parties the efficacy of bills of exception and other steps taken to present their grievances to the decision of the courts, instead of rendering them abortive on technicalities.

Counsel for plaintiffs in error claim that there need be no exception to a refusal of the court to set aside a verdict, and that the motion to set it aside is per se a protest against it, and negatives all idea of waiver of objection to it or acquiescence in it. Logically it would seem so to me. It would seem that if the evidence is before this court, certified by the court, which is a notice to him that his decision on it is unsatisfactory, and will be appealed, this court ought to review it, though there be no exception. But the language of several decisions requires that there be an objection to that ruling of the court shown by the record. Danks v. Rodeheaver, 26 W. Va. 274; State v. Rollins, 31 W. Va. 363, 6 S. E. 923; State v. Thompson, 26 W. Va. 149; Congrove v. Burdett, 28 W. Va. 220. But it is not necessary to say whether these decisions are correct on this point, as I am clear that the record does show an exception.

Next, as to a new trial. The plaintiff, Gilmer, claims that he went in company with Johnson to the drug store of defendants, O. P. Sydenstricker & Co., and presented a prescription for three pints of whisky; that one of the defendant partners directed a colored employe (Simpson) in their store to fill it, and that he left the store to go to his buggy, leaving Johnson to bring the whisky when the bottles should be filled;...