Hall v. Shelton

• Citation: 116 S.E. 12
• Decision Date: 17 April 1923
• Docket Number: (No. 4709.)
• Parties: HALL . v. SHELTON.
• Court: Supreme Court of West Virginia

116 S.E. 12

HALL .

v.SHELTON.

(No. 4709.)

Supreme Court of Appeals of West Virginia.

April 17, 1923.

(Syllabus by the Court.)

Evidence introduced upon the trial of an action will not be considered here upon a writ of error unless the same has been niade a part of the record by a proper bill of exceptions.

Though a bill of exceptions be made up and signed by the trial judge within 30 days after adjournment of the term at which the trial was had or final judgment entered, it does not become a part of the record so as to be considered here upon a writ of error unless within the same time an order be also signed and certified to the clerk for record as provided by section 9 of chapter 131, Barnes' Code 1923.

An order of the trial court entered more than 30 days after the term at which the trial was had or final judgment entered, overruling defendant's motion to enter a nunc pro tunc order showing that such bill of exceptions was presented to the court during the same term, but certifying that the same was presented and duly signed by the judge on the day it purports to have been signed, will not cure the omission of the order required by the statute.

After the expiration of such 30 days' extension given by the statute for making up and certifying bills of exceptions the court or judge trying the case is without jurisdiction thereafter to do so.

The provisions of section 3 of chapter 98, Acts 1921, relating to shorthand reporters, providing for the making up and authentication of a transcript of the evidence and for the use thereof afterwards in making up the record for appeal, do not do away with the requirement of a proper bill of exceptions making such evidence a part of the record.

(Additional Syllabus by Editorial Staff.)

Error to the Circuit Court, Kanawha' County.

Action by Wilbur Hall against James A. Shelton. Judgment for plaintiff, and defendant brings error. Affirmed.

Byrne, Littlepage & Linn, of Charleston, for plaintiff in error.

H. D. Rummel and Donald O. Blagg, both of Charleston, for defendant in error.

MILLER, P. Defendant would have us reverse the judgment below in favor of plaintiff against him on the verdict of the jury for $4,000.00, in an action for personal injuries due to his alleged negligence in driving his automobile upon plaintiff and his motor cycle, on one of the streets In the City of Charleston.

The only points of error assigned and relied on involve consideration of the evidence adduced before the jury. To what extent we may consider any of these points depends upon whether either the evidence or the instructions, or any of them, are properly before us. The contention of plaintiff's counsel is that they are not.

From the orders of the circuit court we learn that the trial of the case was begun before the jury and concluded on September 24, 1921, resulting in the verdict aforesaid; that a motion was then made by defendant to set aside the verdict and award him a new trial, assigning as one of the grounds that the verdict was contrary to the law and the evidence, and further that the court admitted improper evidence on behalf of the plaintiff, and refused to admit proper evidence on behalf of the defendant, and also gave to the jury improper instructions on behalf of the plaintiff and rejected proper instructions offered on his behalf, which motion the court then took time to consider.

On a later day, namely, on December 15, 1921, by an order then entered, the court overruled the motion to vacate the verdict and pronounced the judgment complained of; but on motion of defendant by counsel the judgment was suspended for the period of 45 days, to enable him to make application to this court for a writ of error. But the record is silent as to any certificate of evidence or bills of exceptions, except that the order shows that defendant excepted to rulings of the court.

However, there appears in the certified transcript and in the printed record now presented what purport to be three several bills of exceptions, "Bill of Exceptions No. 1, " "Bill of Exceptions No. 2, " and "Bill of Exceptions No. 3, " the first purporting to be a certificate of the evidence, certified, in the first place by Ruel E. Sherwood, Official Shorthand. Reporter, on January 3, 1922, and secondly by A. P. Hudson, Judge of the Circuit Court of Kanawha County, on January 11, 1922; the second purporting to contain plaintiff's instructions Nos. 1 and 2, given over the defendant's objection, also instructions for defendant Nos. 1, 2, 3 and 4, of which No. 2 was refused, and the others refused as prayed for, but modified and given as modified, to which modification defendant excepted, and to the refusal to give No. 2 in toto defendant also excepted.

We may take judicial notice that the term of the circuit court at which the case was tried before the jury and that at which the motion for a new trial was disposed of had ended before these bills of exception were signed by the judge, for the next following term began by operation of law on the 9th day of January, 1922, and as no order was made in court or by the judge in vacation within 30 days after the adjournment of said term allowed by law for making up and certifying bills of exceptions, as provided by section 9, chapter 131 of Barnes' Code 1923, the evidence, we do not think, can be considered for any purpose. We held in McKenzie v. Mackall, 85 W. Va. 391, 102 S. E. 118, construing this statute, that evidence introduced upon the trial of an action will not be considered upon a writ of error unless the same is made a part of the record by proper bill of exceptions.

We also held in prior cases, that although proper bills of exceptions may have been made up and signed within 30 days after the adjournment of the term, they are not' properly a part of the record so as to be considered by the appellate court unless the judge has within the same time certified them to the clerk by an order to be recorded. Jones v. Harmer, 60 W. Va. 479, 55 S. E. 657; Yates v. Crozer Coal & Coke Co., 76 W. Va..50, 84 S. E....