Koontz v. Koontz

Decision Date18 November 1899
CourtWest Virginia Supreme Court
PartiesKOONTZ. v. KOONTZ et al.

APPEAL— REVIEW—PLEADING—BILL OF EXCEPTIONS.

1. When a demurrer to a declaration is overruled, and the order overruling it shows the fact that nothing was alleged by the demurrant in support of his demurrer, and final judgment is obtained by the plaintiff in the case, the judgment will not be reversed by reason of any defect in the declaration.

2. A paper purporting to be a bill of exceptions, and copied into the record as such, will not be regarded or treated by the appellate court as a part of the record, unless the record shows that it was by some order or memorandum entered on the order book of the trial court, made a part of the record.

(Syllabus by the Court.)

Error to circuit court, Marshall county; O. L. Holliday, Special Judge.

Action by Elizabeth Koontz against E. W. Koontz and T. M. Powell. Judgment for plaintiff, and defendants bring error. Affirmed.

Robert White, for plaintiffs in error.

J. Howard Holt, for defendant in error.

McWHORTER, J. Elizabeth Koontz, administratrix of William Koontz, deceased, brought her action of assumpsit in the circuit court of Marshall county against E. W. Koontz and T. M. Powell, laying her damages at $4,000. At the March term, 1897, defendants appeared, and demurred to the plaintiff's declaration, and the record shows that, no cause being assigned therefor, the demurrer was overruled by the court. The defendants then filed in writing the plea of payment, to which plea plaintiff replied generally, and a jury was duly impaneled to try the issue, and on the 26th day of March the jury returned a verdict for the plaintiff, and assessed her damages at $2,787.79. The defendants moved the court to set aside the verdict of the jury and grant them a new trial. On the 7th day of April, the defendants filed, in support of their said motion, the affidavits of J. K. P. Barker, E. W. Koontz, T. M. Powell, and H. W. Hunter, and on the 10th day of April, 1897, the court heard the arguments of counsel on said motion, and overruled the same, to which ruling of the court the defendants objected and excepted, and the court rendered judgment upon said verdict; and this is all that appears from the record. There is, however, copied with the record, and immediately following the said judgment entered on the verdict, a pa per which purports to be a bill of exceptions on behalf of the defendants, signed by O. L. Holliday, special judge, but there is no memorandum or reference to the paper on the record recognizing it, or filing it, or making it a part of the record in the case. There is no entry on the record book in reference to any bill of exceptions, or to any bill of exceptions being prepared, or signed, or asked for; and, under the uniform rulings of this court for many years, said paper cannot be considered in the hearing of the case in this court. In Phelps v. Smith, 16 W. Va. 522 (Syl., point 1), it is held: "When the record does not show that a bill of exceptions had been taken, and made a part of the record by order of the court below, the appellate court will not consider it a part of the record, and will not look to it for any purpose upon writ of error." And in Bank v. Show-acre, 26 W. Va. 48 (Syl., point 4): "A paper purporting to be a bill of exceptions, and copied into the record as such, will not be regarded or treated by the appellate court as a part of the record unless the record shows that it was, by some order or memorandum entered on the order book of the trial court, made a part of the record." In Sweeney v. Baker, 13 W. Va. 158, there was copied by the clerk into the record a certificate signed by the...

To continue reading

Request your trial
8 cases
  • Monongahela Ry. Co v. Wilson
    • United States
    • Supreme Court of West Virginia
    • 24 Septiembre 1940
    ......Null, 31 W.Va. 450, 7 S.E. 443; Griffith v. Corrothers, 42 W.Va. 59, 24 S.E. 569; Craft v. Mann, 46 W.Va. 478, 33 S.E. 260; Koontz v. Koontz, 47 W.Va. 31, 34 S.E. 752; Ketterman v. Railroad Co., 48 W.Va. 606, 37 S.E. 683; Bank of Ravenswood v. Wetzel, 58 W.Va. 1, 50 S.E. ......
  • Monongahela Ry. Co. v. Wilson
    • United States
    • Supreme Court of West Virginia
    • 24 Septiembre 1940
    ......Null, 31. W.Va. 450, 7 S.E. 443; Griffith v. Corrothers, 42. W.Va. 59, 24 S.E. 569; Craft v. Mann, 46 W.Va. 478,. 33 S.E. 260; Koontz v. Koontz, 47 W.Va. 31, 34 S.E. 752; Ketterman v. Railroad Co., 48 W.Va. 606, 37. S.E. 683; Bank of Ravenswood v. Wetzel, 58 W.Va. 1,. 50 S.E. ......
  • MONONGAHELA Ry. Co. v. WlLSON
    • United States
    • Supreme Court of West Virginia
    • 24 Septiembre 1940
    ...W. Va. 450, 7 S. E. 443; Griffith v. Corrothers, 42 W. Va. 59, 24 S. E. 569; Craft v. Mann, 46 W. Va. 478, 33 S. E. 260; Koontz v. Koontz, 47 W. Va. 31, 34 S. E. 752; Ketterman v. Railroad Co., 48 W. Va. 606, 37 S. E. 683; Bank of Ravenswood v. Wetzel, 58 W. Va. 1, 50 S. E. 886, 70 L. R. A.......
  • Hanson v. Blake
    • United States
    • Supreme Court of West Virginia
    • 18 Febrero 1908
    ...the demurrer cannot avail, since no grounds of demurrer were assigned. Code 1899, c. 125, § 29 [Code 1906, § 3849]; Kobntz v. Koontz, 47 W. Va. 31, 34 S. E. 752. Besides, the declaration is clearly sufficient in law to support action against the defendant personally, as hereinafter stated. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT