Grottendick v. Webber

• Citation: 61 S.E.2d 854,134 W.Va. 798
• Decision Date: 31 October 1950
• Docket Number: No. 10262,10262
• Court: Supreme Court of West Virginia
• Parties: GROTTENDICK, v. WEBBER.

Page 854

61 S.E.2d 854

134 W.Va. 798

GROTTENDICK, v. WEBBER.

No. 10262.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 7, 1950.

Decided Oct. 31, 1950.

Syllabus by the Court.

1. The timely and proper execution of a bill of exceptions or certificate in lieu thereof, under Code, 56-6-35, 36, is jurisdictional, and the absence thereof may be raised by this Court of its own motion.

2. On the trial of an issue of devisavit vel non, the evidence adduced on the trial of such issue is not a part of the record unless made so by a bill of exceptions or certificate in lieu thereof in accordance with Code, 56-6-35 or Code, 56-6-36. If such evidence is not so made a part of the record, it will not be considered on appeal in this Court.

3. '* * * Every instruction or charge in writing read to the jury and every instruction or charge in writing prayed by any party and refused by the court' is a part of the record without the formality of a bill of exceptions or certificate in lieu thereof if 'such instruction or charge have a notation thereon showing the action of the court with reference thereto over the signature of the judge * * * together with the objections and exceptions thereto, endorsed thereon.' Code, 56-6-20.

4. Although an instruction or charge in writing is a part of the record, under Code, 56-6-20, if the objection thereto is predicated in whole or in part upon evidence not properly made a part of the record, such objection will not be considered on appeal.

Kermit R. Mason, Morgantown, and Thomas W. Lewis, Kingwood, for appellant.

Parrack, Snyder & Wehner, Charles V. Wehner, Melvin C. Snyder, and R. Doyne Halbritter, all of Kingwood, for appellee.

LOVINS, President.

This suit originally brought by Charles Grottendick, guardian of Mary Grottendick, an infant, in the Circuit Court of Preston County against James F. Webber for the purpose of impeaching the last will and testament of Cecilia Webber, was formerly considered by this Court on appeal. The record then presented questions pertaining to the filing of an amended bill and direction and trial of an issue devisavit vel non, under Code, 41-5-11. It was held on that appeal that the amended bill setting up an additional cause for impeaching the will could be filed; that the inclusion of a new ground of impeachment of the will did not change the cause of action from that set forth in the original bill of complaint; and that the contestant of the will was entitled to have an issue devisavit vel non tried by a jury. Grottendick v. Webber, W. Va., 52 S.E.2d 700.

After remand Charles Grottendick, guardian, died, the suit was revised in the name of Anna K. Grottendick, guardian of Mary Grottendick, and the trial of the issue devisavit vel non was had before a jury, resulting in a verdict that the paper writing theretofore probated as and for the last will and testament of Cecilia Webber was not her will. James F. Webber, the son of Cecilia Webber, was the proportion of the will and Anna K. Grottendick, guardian of Mary Grottendick, was the contestant. They will be hereinafter so designated.

Predicated upon such verdict the Circuit Court of Preston County, on September 22, 1949, decreed that the paper writing was not, nor was any part thereof, the true last will and testament of Cecilia Webber; that the former probate thereof in the office of the Clerk of the County Court of Preston County be set aside; and that contestant recover her costs. From that decree, proponent prosecutes an appeal to this Court.

Interlocutory proceedings were had and various rulings were made by the trial court prior to July 25, 1949. On that date a jury was impaneled, and the trial was commenced. The trial was concluded on July 28, 1949, when the jury returned the verdict: 'We, the jury, find the paper writing dated November 1, 1945, in this case, is not the last will and testament of Cecilia Webber.' A motion to set aside the verdict was made, as well as a motion for judgment, notwithstanding the verdict. The motions were set for hearing on August 17, 1949. The record does not disclose any disposition of the motions until September 22, 1949, when the court overruled both motions, and entered a decree on the verdict of the jury as stated above.

The Circuit Court of Preston County, on December 9, 1949, entered a decree granting an extension of sixty days, within which the proponent could perfect his appeal to this Court, and granting the proponent 'An additional sixty days from the order entered on the 22nd day of September, 1949 * * *.' No other order or decree seems to have been entered until February 7, 1950, when, at a special term of the Circuit Court of Preston County, a decree made proponent's bills of exceptions Nos. 1 and 2 a part of the record in this case. The decree entered February 7, 1950, recites that it was within sixty days from the adjournment of the regular October, 1949, term, which clearly is irrelevant since the final decree was entered on the 22nd day of September, which, according to the proponent's bill of exceptions No. 1, was the last day of the regular June, 1949, term of the Circuit Court of Preston County.

For a statement of additional facts, see the opinion of this Court in Grottendick v. Webber, supra.

Although not raised in briefs or oral arguments, this record calls for an inquiry whether the depositions, the testimony taken ore tenus, and the exhibits filed with such testimony are properly a part of the record herein.

We think that three questions are presented: (1) May the absence of a proper bill of exceptions be raised in this Court on appeal; (2) Is a bill of exceptions necessary to make the evidence a part of the record on an appeal from a decree on the trial of an issue devisavit vel non; and (3) do the provisions of Code, 56-6-35, 36, and the decided cases with reference to a bill of exceptions in law actions apply in suits of this kind?

Bills of exceptions did not exist at common law, and are creatures of statute. In actions at law it is indispensable that a proper bill of exceptions be taken, or a certificate in lieu of such bill be made, in order that the evidence be made a part of the record. Otherwise, evidence adduced in the trial of an action at law will not be considered upon writ of error. Hall v. Shelton, 93 W. Va. 592, 116 S.E. 12; Monongahela Railway Co. v. Wilson, 122 W. Va. 467, 10 S.E.2d 795. A bill of exceptions in a law action may be signed by a judge 'at any time before final judgment is entered, or within sixty days after the adjournment of the term at which such judgment is entered * * *.' Code, 56-6-35. Similar provisions are applicable to a certificate of the evidence in lieu of a bill of exceptions. Code, 56-6-36(e). And the trial court, or judge thereof, may extend the time beyond the period of sixty days. Code, 56-6-35, 36. An extension of time must be signed within the statutory period of sixty days. State v. Consumers' Gas & Oil Co., 130 W. Va. 755, 45 S.E.2d 923; State v. Tate, 125 W. Va. 38, 22 S.E.2d 868; Monongahela Railway Co. v. Wilson, supra. A stay of execution of the judgment is not sufficient to extend the time for signing the bill of exceptions. State v. Consumers' Gas & Oil Co., supra. After the expiration of such period of time in the absence of extension, there is no jurisdiction to sign a bill or a certificate, even though the litigants consent. Crowe v. Corporation of Charles Town, 62 W. Va. 91, 57 S.E. 330. See Layne v. Chesapeake & O. Railway Co., 66 W. Va. 607, 611, 67 S.E. 1103; Barker v. Stephenson, 67 W. Va. 490, 493, 68 S.E. 113.

Properly executed bills of exceptions, or in lieu thereof certificates of the evidence, under Code, 56-6-35, 36, 'are necessary to give this Court jurisdiction to hear matters which must be made a part of the record by bills of exceptions or certificate.' State v. Wooldridge, 129 W. Va. 448, 457, 40 S.E.2d 899, 905. See State v. Varner, 131 W. Va. 459, 48 S.E.2d 171, for a discussion of the subject of bills of exceptions and certificates in lieu thereof. 'Jurisdiction once existing may lapse by failure to exercise it within the time limited by statute.' Nelson v. Nash, 126 W. Va. 568, 574, 29 S.E.2d 253, 256; Tsutras v. Farrar, 109 W. Va. 509, 155 S.E. 655. In actions at law brought to this Court by writ of error, assignments of error involving consideration of...