Griffith v. Corrothers
| Decision Date | 04 April 1896 |
| Parties | GRIFFITH et al. v. CORROTHERS. |
| Court | West Virginia Supreme Court |
Submitted February 1, 1896
Syllabus by the Court.
1. Where a judgment is rendered in a case, and the court allows 30 days under the statute to make up and obtain from the judge, in vacation, bills of exception, such bills of exception, when signed by the judge, must be certified to the clerk of the court, who must enter them upon the order book of such court before they become a part of the record in the case.
2. A plaintiff in error assumes upon himself the burden of showing error in the judgment complained of.
3. An appellate court will not reverse the judgment of an inferior court unless error affirmatively appears upon the face of the record; and such error will not be presumed, all the presumptions being in favor of the correctness of the judgment.
Error to circuit court, Monongalia county.
Ejectment by R. R. Griffith and others against John W. Corrothers. There was a judgment for plaintiffs, and defendant brings error. Affirmed.
R. L Berkshire and Cox & Baker, for plaintiff in error.
Okey Johnson and L. V. Keck, for defendants in error.
This was an action of ejectment instituted in the circuit court of Monongalia county, by Romulus R. Griffith, Jr., Mary E Corkson, and Fenwick M. Corkson, her husband, against John W Corrothers, to recover a tract of land containing 1,400 acres, more or less. On the 18th day of June, 1887, the defendant pleaded not guilty, and issue was thereon joined an order of survey was directed, and a report of the surveyor returned in pursuance thereof. On the 22d day of October, 1890, it appearing that the case was one in which the judge of the court could not properly preside, Joseph Moreland, an attorney practicing in the court, was elected special judge to preside at the trial of the cause, who took the oath prescribed by law, and the trial proceeded. On the 1st day of November, 1890, the defendant demurred to the plaintiffs' declaration, and each count thereof, in which demurrer the plaintiffs joined, and said demurrer was overruled by the court. The case was then submitted to a jury, on the 20th day of June, 1894, which resulted in a verdict for the plaintiffs; and the defendant, by his attorney, moved the court to set aside the verdict of the jury aforesaid, on the ground that it was contrary to the law and the evidence in the case, which motion the court overruled; and the defendant, by his attorney, excepted, and judgment was thereupon rendered upon said verdict, and 30 days' leave was given from the date of the judgment in which to take bills of exception.
The last clause of section 9 of chapter 131 of the Code provides that the court may, in vacation, within 30 days after the adjournment of the term, make up and sign any bill of exceptions, and certify the same to the clerk of the court who shall enter it upon the order book of such court, and any such exceptions so made in vacation shall be a part of the record, and have the same effect as if made in term time. We find six several bills of exceptions, signed by Joseph Moreland, copied into the record; but it does not appear when they were so signed. They were not taken during the trial, because there is no order showing that such bills of exception were taken during the trial, but, on the contrary, the record shows that 30 days' leave was given the defendant from the date of the judgment in which to take bills of exception; but it does not appear that either of these bills of exception, when signed by the judge, were certified to the clerk, as required by statute, or that the clerk entered them upon the order book of such court; and, unless so certified and entered, they do not become part of the record, because the statute, after directing that they shall be certified to the clerk, and entered by him upon the order book of such court, further provides that any such exceptions so made in vacation shall be a part of the record, and have the same...
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