GRaham v. Citizens' Nat. Bank Of Parkersburg.

Decision Date17 December 1898
Citation45 W.Va. 701
PartiesGRaham v. Citizens' Nat. Bank of Parkersburg.
CourtWest Virginia Supreme Court
1. Equity Inj unction Judgment New Trial.

Chancery will not enjoin a judgment at law and grant a new trial merely for error in the law court, but only because of fraud, accident, surprise, or some adventitious circumstance unknown to the party before judgment, and beyond his control. (p. 703).

2. Equity New Trial Judgment Appellate Court.

If a party know, or by ordinary diligence could have known, before a final judgment in a law court, a fact, he must make it the ground of a motion for new trial, and, if refused, go to an appellate court, as equity will not grant him a new trial for it. (p. 706).

3. Equity New Trial Change of Venue Writ of Error.

Equity will not grant a new trial because of prejudice in the community. That must be made available by application for a change of venue and writ of error. (p. 705).

4. Equity New Trial.

A new trial in equity cannot be had on merely asking. Particular grounds pointed out by equity law must exist, and they must be clearly proven. (p. 705)

5. Verdict Jurors.

Jurors will not be heard to impeach their verdict, except in few instances. They are heard more readily to sustain their verdict, (p. 703).

6. Depositions fury Leave of Court.

Depositions read in a trial at law by a jury cannot be carried out by the jury, to be considered when deliberating on the case, except by leave of court. Code c. 131, s. 12 (p. 704).

7. Judgment Injunction Jurisdiction Judge.

In case the judge of a circuit is interested, a circuit court of a county of an adjoining circuit has jurisdiction to enjoin a judgment rendered in a court of his circuit. (p. 707).

8. Equity New Trial Injunction Judgment.

Chancery cannot reverse or set aside a judgment of a law court for error or other cause, and order the law court to grant a new trial, but it can act on the person of the owner of the judgment by injunction against the enforcement of the judgment, and direct a trial by jury, and, upon verdict, either perpetuate or dissolve, in whole or in part, the injunction. (p. 708).

9. Judgment Injunction Injunction Bond Costs.

Where there is an injunction to a judgment against two or more persons, and only one signs the injunction bond or applies for the injunction, upon dissolution there should not be award of execution for damages at ten per cent. on principal, interest, and costs from the date till dissolution of the injunction against all the judgment debtors, but only against those signing the bond or asking the injunction; nor should costs in the injunction case be given against those not going in bond or injunction. (p. 708).

10. Harmless Error Costs.

Where there is no other error, this Court will not reverse for error as to costs. (p. 708).

Appeal from Circuit Court, Jackson County.

Bill by R. B. Graham against the Citizens' National Bank of Parkersburg. From a decree dismissing the bill plaintiff appeals.


William A. Parsons and V. S. Armstrong, for appellant.

V. B. Archer and William Beard, for appellees.

Brannon, President:

The Citizens' National Bank of Parkersburg brought two actions at law in the circuit court of Wirt County,-one against R. B. Graham and D. H. Bumgarner, and the other against R. B. Graham and M. M. Dent, which were tried by jury, and in which the verdicts were for the bank, and judgments given for it. Craham then brought a chancery suit in Jackson County to obtain a new trial, and, it resulting in a dismissal of his bill, Graham appealed to this Court.

The printed record is three hundred and eighty-five pages, and the briefs copious; yet I think the matter to be considered, very limited, and dependent on well-settled principles. The bill of twenty printed pages sets up very many matters as grouuds for new trial, and impeaches the court and jury which tried the cases, and the community where the cases were tried, for prejudice against Graham, all of which substantially fail for want of proof; most of them immaterial, even if true. After a trial at law, application to equity for a new trial stands on very restricted ground. Courts of equity have no disposition to prolong litigation after fair trial at law. It will do so only where the reason for it is based on fraud, accident, surprise, or some adventitious circumstance beyond control of the party. Braden v. Reitzenberger, 18 W. Va. 286; Sayre's Adm'r v. Harpold, 33 W. Va. 557, (11 S. E. 16).

From the many grounds presented by the bill for new trial, all are eliminated, and very properly so, by the last brief of appellant's counsel, but three, viz: (1) That the depositions of Shattuck, Jackson and Flaherty in some way got before the jury in its retirement to consider of its verdict, and were read by the jury; (2) that public prejudice existed in the town of Elizabeth and in Wirt County against Graham at the time of the trial; (3) personal ill-will and prejudice on the part of some jurors.

As to the depositions: This charge is sustained by the evidence of two jurors. A long list of Virginia and West Virginia cases, as well as late cases from almost everywhere, hold that the evidence of jurors will not be heard to impeach their verdict. State v. Cobbs, 40 W. Va. 724, (22 S. E. 310); Probst v. Braeunlich, 24 W. Va. 357; Steptoe v. Flood's Adm'r, 31 Grat. 323; Reydolds v. Tompkins, 23 W. Va. 229; 4 Minor, Inst. pt. 1, p. 761; 2 Thomp. Trials, s. 2618. But the effort is to make this case an exception to the confessed general rule, upon the argument that while the evidence of jurors is inadmissible as to their motives in reaching a verdict, or the consideration they gave the evidence of persons or papers, or whether they considered irrelevant or improper evidence, yet they are competent to show collateral or independant circumstances, or facts which, by mistake, accident, or fraud, were before the jury. I do not think this exception can be sustained. Look at the reason of the rule. It is based on a general policy. In Bank v. Waddill's Adm'r, 31 Grat. 483, Judge Moncure says that the rale rests on three grounds: (1) Because the evidence would tend to defeat the solemn acts of the jurors; (2) their admission would open the door to tamper with jurymen after they have given their verdict; (3) because such evidence would be the means, in the hands of a dissatisfied juror, to destroy a verdict at any time after he had assented to it. These reasons apply to this case. While the evidence of jurors cannot impeach their verdict, it is sometimes received to support it, though cautiously. State v. Cartwright, 20 W. Va. 32, (Syl. point 5.) One juror says the depositions were not before the jury. He was foreman, and would likely know. Another, who, as Graham said, told him they were before the jury, when put under oath, says that he does not recollect that they were. If they were, it is strange he had forgotten it. The only evidence we have to show that the depositions were before the jury is that of Graham, whose evidence throughout shows a deep feeling, a strong prejudice, and very ready and liberal unrestrained statement in his own behalf, on this and other points. How does he know the depositions were before the jury? My construction of his evidence is that he saw a bundle of numerous papers, which were before the jury by consent and leave of court, returned into court when the jury returned their verdict, which were all wrapped up in a newspaper, and that at a subsequent time, after the court had adjourned, when he looked among those papers to secure some of his, he for the first time observed these depositions among them, and thence concluded they had been before the jury. On this he flatly states that they "were read by the jury," as if he had been in the jury room. Now, these depositions might have been put among the papers in the meantime. We do not know. We want certainly to nullify a tedious trial. This interested witness is not alone adequate to establish this important fact. Why did he not prove this by the clerk who would likely know? Is it his effort to defeat verdicts rendered in due course for just debts? If he did see these depositions for the first time after adjournment, it does not show that they were before the jury. If he saw them just when the jury returned, that utterly defeats his bill as to this ground of new trial, because the law com- pelled him to make a motion then and there for a new trial, and state this fact as its ground. He did not. The law is that an application to equity for a new trial cannot be had on merely asking. He must prove good ground. Black v. Smith, 13 W. Va. 780. And the ground must be one which was unknown to the party before adjournment of court. Alford v. Moore's Adm'r, 15 W. Va. 597; Meem v. Backer, 10 Grat. 506; Faulkner's Adm'r v. Harwood, 6 Rand. 126. I do not assert that, if these depositions were read by the jury, it would not be ground for new trial. I shall not discuss this, because their presence before the jury is not established; but in this connection it may not be without force, in denying the bill, to say that, if they were, it ought not to affect the case, but is a mere technical objection, to frustrate a fair trial, because they were taken before a commissioner, to whom the case was referred to take an account, and all parties agreed that they might be read in evidence, though they were not read on the trial; and to say, further, that the witnesses who gave them were examined on the trial, and it ought to appear that the depositions were different from their evidence. Did they hurt Graham more than the evidence of the witnesses? Did they contradict them? It does not appear. And how do we know the court did not, as it could, give leave to let them be carried out by the jury? This deposition matter is the core of the plaintiff's case, and there is nothing in that.

As to the second point, prejudice in the community: If the case...

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