Henry v. Davis.

• Decision Date: 15 July 1874
• Citation: 7 W.Va. 715
• Court: West Virginia Supreme Court
• Parties: Henry v. Davis.

7 W.Va. 715

Henry

v.Davis.

Supreme Court of Appeals of West Virginia.

July 15, 1874.

Upon a motion to grant a new trial, on an issue out of chancery, and refused by the court, the bill of exceptions certifies the evidence,-and not the tact-proved on the trial. Held:

1. An appellate court will not take cognizance of the case and re-verse the judgment, unless by rejecting all the parol evidence for the exceptor, and giving full force and credit to that of the adverse party, the decision of the court below still appears to be wrong.

2. Instructions to the jury should be pertinent to the issue, and not addressed to a different Inquiry than that contained therein; and should not be couched in ambiguous language, or be of doubtful meaning, and if otherwise, they should be refused.

Appeal, by Henry G. Davis, from a decree of the circuit court of Doddridge county rendered on the 3rd day of May, 1872, in a suit therein pending, wherein Eugene Henry was complainant and said Davis, Benjamin Wilson, T. K. Knight and Benjamin F. Martin, respon-dents.

The material facts appear in the opinion of Paull, Judge.

The Hon. Chapman J. Stuart, judge of said circuit court, presided at the trial and hearing below.

Caleb Boggcss for the appellant.

Daniel Lamb and C. C. Cole, for the appellee.

Paull, Judge:

The following principles appear to have been decided by the court of appeals of Virginia, in regard to issues out of chancery:

First. When an issue is tried it is under the superintendence of the court, which will prevent the introduction of improper testimony; and if the verdict be against evidence, the court will so certify, and the chancellor will not be satisfied with it. Flesant Shore & Co. v. Boss, 1 Wash., 156; Southall v. McKeand, Id., 336.

Second. It is matter of sound discretion whether the chancellor should direct the issue, or decide the questions of fact for himself; and like matter of discretion, whether he should set aside the verdict on the issue or not; he is not bound to set it aside in deference to the certificate of the judge of the court of law against it. Grigsby v. Weaver, 5 Leigh, 197. Judge Carr delivering the opinion of the court in that case, said: "Issues are not directed to get a new supply of evidence when they have not enough; but where there is clashing and conflicting evidence leaving the fact in doubt, and rendering it necessary to weigh the character and credibility of witnesses, the chancellor who sees them only on paper, considers that his conscience can be better satisfied by the verdict of a jury who shall see and hear them."

Brooke J., who concurred in the opinion, said: "Weighing the verdict of the jury which is supported by the evidence of the record, I think, (admitting the chancellor was right in directing the issue) that the verdict must outweigh the certificate of the judge. Both were intended to satisfy the conscience of the chancellor."

Third. Upon all trials at law of issues out of chancery, all the proceedings upon the trial of the issues as spread upon the record thereof, constitute part of the certificate ofthe verdict, and with it become part of the chancery record. Watkins and wife v. Carlton, 10 Leigh, 560. Judge Tucker delivering the opinion of the court, says: "And upon this point, I observe that I shall take the whole proceedings in the court of law upon an issue directed out of chancery for the purpose of ascertaining a particular fact, to be part and parcel of the chancery cause.

The court of law is but ancillary to the court of chancery; it has no jurisdiction in such case, except that" which is derived from the chancellor's order; it must pursue its directions, admitting papers to be read which he orders to be read; and, if required, it must certify any instructions which are given to the jury, that the chancellor may decide whether they were rightly given or not; finally, it can give no judgment on the verdict, but must certify it to the court of chancery to avail there as it may."

Fourth, Upon an issue directed out of Chancery the verdict of the jury is conclusive when there is no exception spreading the facts proved upon the record. Fitzhugh'a Kvors. v. Fitzhugh, 11 Gratt. 210. In this case it was held, when an issue is directed in a chancery cause, and a verdict is found, to which no exception is taken and a decree is rendered thereon, the facts found in the verdict must be regarded in the appellate court, as the established facts in the case.

From the views and principles thus presented in regard to chancery issues, let us endeavor to understand, what is now the position of the chancellor, and of the appellate court, and what are their respective powers or duties, and the views by which they shall be controlled.

The chancellor unable from the evidence in his possession, to determine satisfactorily what is the fact in controversy, directs an issue to be iound and tried in a court of law, that he may have the aid or benefit of the verdict of a jury. It is in cases generally, if not exclusively, of conflicting evidence, involving the credibility of witnesses, that such issues are directed. This mode of proceeding by chancery courts, was not founded, I apprehend, on the idea, to any extent, that a body of twelve men, was more competent than the courts themselves, to make the proper deductions, and the more readily and truly to ascertain the fact in question, if exactly the same evidence in the same form was before them, as before the jury. But this jury trial was based upon the fact, that "before the jury additional testimony might be introduced; but especially that the jury would be able to see the bearing and manner of the witnesses on the trial, and to form a better estimate of their credibility in cases of conflict and of doubt. Of these matters, formerly, the chancellor could know nothing the jurisdiction of the law and chancery courts being vested in different persons; this then was the chief advantage sought for in this mode of proceeding. The verdict was certified to the chancellor, and might or might not be accompanied with a certificate of the facts proved, or of the evidence, or of the opinion of the judge who presided at the trial, or of any of the proceedings which attended it. The chancellor was in no way bound by the verdict, when received. It was not at any time, and is not now, anything more than a mere opinion, whose chief value is supposed to consist in the way in which it was or is obtained. It has no legal or binding effect upon any court, tribunal, person or thing whatever; and this is equally true whether the trial in which it was had appeared from the record to have been free from errors in the rulings of the court touching instructions, or evidence, or any other respect whatsoever. The chancellor did not sit as an appellate court to revise or review the action of the court of law, and did not grant new trials merely because there were errors in the proceeding. These were considered matters of indifference in themselves as it was in the power of the chancellor, in a review of the whole case, to prevent their operating any prejudice to the rights of the parties. All that he desired was additional information to be found in the verdict of the jury; and when this was furnished, and he was satisfied, the enquiry ended. If he was not satisfied, he might direct another trial, and so continue in this way his pursuit of information; and in this way he might obtain verdicts of an opposite character, but he was bound by none of them, and might decide the case according to his own views of the evidence before him, or accept the aid of a verdict at his pleasure.

When the jurisdictions of the chancery and law courts was separate, it is obvious that the appellate court and the chancellor occupied precisely the same relative position to the proceedings of the court of law, neither being present and having only the record to guide them. The appellate court had just the same means of judging of their character, and of arriving at just conclusions, respecting their effect in developing the fact in question, and might upon a review of the whole case, simply affirm, or reverse the decree of the chancellor, and itself make a final disposition of the cause. If, however, the case did not seem satisfactory to the appellate court, and there was reason to believe that fuller and more satisfactory information touching the fact in question might be obtained, that court might direct another trial by jury, upon its own motion its powers and those of the chancellor being the same. In the case of Ross v. Pynes 3 Call. 568, there were two verdicts of the jury one way, and two certificates of the judges against them, as being contrary to evidence, and in each case the court of appeals said that the chancellor ought to be satisfied with the finding, notwithstanding the opinion of the judge; in other words the chancellor was not to wait and endeavor, by repeated trials, to secure an agreement between the court and jury which tried the case, as to the weight of the evidence; still the chancellor was at liberty, as seen by the cases, to inspect the whole record of the proceedings, and render his decision, according to the best dictates of his own judgment as informed or enlightened by the means thus employed; but the value to be attached to the verdict of the jury was intimated in that case, by the court of appeals, as well also as in the case of Grigsby v. Weaver in 5 Leigh., before cited, in which the certificate of the judge was against the evidence; but the chancellor disregarding it, entered a decree in accordance with the finding of the jury, and his action was affirmed by the appellate court.

Again, we note, particularly, the difference between a verdict in a ease brought in a court of law, and a verdict rendered in an issue out of chancery: In the former case, the verdict if sustained and judgment entered upon it, becomes of binding and conclusive effect between the...