Lewis v. Childers

• Court: West Virginia Supreme Court
• Writing for the Court: HAYMOND.
• Citation: Lewis v. Childers, 13 W.Va. 1 (W. Va. 1878)
• Decision Date: 27 April 1878
• Parties: Lewis and Frazier v. Childers, et al

13 W.Va. 1

Lewis and Frazier

v.Childers, et al

Supreme Court of Appeals of West Virginia.

Decided April 27, 1878.

1. Verdicts of juries are to be favorably construed; and if the

point in issue is substantially decided by the verdict, it is the duty of the court to mould it into form.

2. When the meaning of the jury can be clearly collected from

the verdict, it ought not to be set aside for irregularity or want of form in its wording.

3. In ejectment when the meaning substantially of the jury

cannot be satisfactorily collected from their verdict, upon material matters involved in the issue, the verdict is irregular and too vague, and is insufficient, and should be set aside and a new trial awarded.

4. In ejectment the jury found a verdict in these words, viz: "We the jury, find for the defendants, and fix the line, as shown on the Sinnett map, from C. to D." This verdict held, by the Appellate Court, under the. circumstances and facts stated in its opinion, to be so irregular and vague as to matters in issue, as that the same should be set aside, and a new trial awarded.

Writ of error to a judgment of the circuit court of Kanawha county, rendered on the 29th day of June, 1876, in an action of ejectment, in which William A. Lewis and William Frazier, trustees, were plaintiffs, and Felix Childers and others were defendants, granted on the petition of said Lewis and Frazier.

Hon. Joseph Smith, judge of the seventh judicial circuit, rendered the judgment complained of.

The facts sufficiently appear in the opinion of the Court.

Miller and Broun, counsel for plaintiffs in error, cited the following authorities:

1 Munf. 162; 1 H. & M. 177; Tucker's Comm. Vol. 2, p. 173; 6 Pet. 205; 6 Munf. 25; 11 Gratt. 78; 5 Leigh 98; 6 Rand. 182.

J. H. & J. T. Brown, counsel for defendants in error relied on the following authorities:

5 Gratt. 110; 1 Greenl. Ev. 47, 24, 25, 26, 211; 11 Gratt, 605; 8 W. Va. 412; 2 Bibb 178; Id. 429; 1 Bibb 248, 257; Litt. Sel. Cas. 367; 4 Bibb 194; 2 Tuck. 176; 1 Gil. 118; 4 Bur. 2487; 5 T. R. 107; 8 Bos. (N. Y.) 528; 7 T. R. 334; 5 Mon. 538; Code of W. Va., p. 521, sec. 25; 2 Saund. 308; 6 Rand. 182; Id. 410; Hobart 53; Co. Litt. 227 a; 1 Lev. 66; 6 Rand 118; 2 Gratt. 193; 14 Gratt. 287; 2 Bibb 150; Id. 236; 2 Wheat. 221; Hemp. 184; 1 W. Va. 1; 2 Wheat. 306; 14 How. 240; 3 W. Va. 37; Humph. 3; 4 B. Mon. 5; 2 W. Va. 427; 20 Wend. 635; 42 Barb. 585; Bul. N P. 110; 11 Gratt. 84.

Haymond, Judge, delivered the opinion of the Court:

In February, 1872, the plaintiffs, by their attorney, filed their declaration in ejectment in the clerk's office of Kanawha county, against Felix Childers, John Means, Allen Dunlap, George Merville, trustee, Samuel Blish and James Brogan. The declaration contains three counts. The first count is in the name of Wm. A. Lewis and Wm. Frazier, trustees of Susan M. Fiazier and her children, and is for 480 acres of land, conveyed by John Lewis and Sarah E., his wife, to James A. Lewis, by deed dated the 5th day of December, 1849, and also for another tract, containing 1, 200 acres of land, conveyed by John Lewis and Sarah E., his wife, to James A. Lewis by deed made the 18th day of June, 1849. Both of said tracts are alleged to be in Kanawha county, and are described in the count. The second count is in the name of William Frazier, trustee, &c, and appears to be for the same two tracts of land mentioned in the first count. The third count is in the name of the "said plaintiffs," and appears to be for the.same tracts of land as the said first and second counts. Each count alleges, that the plaintiffs therein were possessed in fee of the lands therein mentioned and demanded.

At a Circuit Court held for Kanawha county on the 1st day of April, 1872, (the record states) "came the parties by their attorneys, and thereupon the defendants demur generally to the plaintiffs' declaration, in which demurrer the plaintiffs join. And the defendants for plea in this behalf plead not guilty, and put themselves upon the country; and the plaintiffs do the like." It also appears, that by consent the surveyor of the county was ordered to make a survey of the lands in controversy, &c.

It further appears, that on the 11th day of June, 1873, on motion of plaintiffs' counsel, the following persons were made additional parties defendant to this suit, viz: Parker Means, William Means, James R. Davis, Benjamin C. Davis, Thomas A. Davis, John Ballard and Jane, his wife, Frank Dunlap and Sarah, his wife, Elijah Midkiffand Minerva, his wife, Leonora Davis, Harriet Davis,

Lewis Baise and Davis, widow of Thomas Davis,

deceased. And the court ordered, that an amended declaration, with the above additional parties defendant, "may be filed in this suit, and the same is accordingly filed," and the cause remanded to rules for further proceedings.

The amended declaration and notice with the return of the sheriff thereon appear to have been filed at August rules. The first count of the amended declaration is in the name of Wm. A. Lewis, and William Frazier, trustees of Susan M. Frazier and her children, against Felix Chiiders, John Means, Allen Dunlap, George Merrell, Samuel Blish, and James Brogan, Parker Means, Wm. Means, James R, Davis, Benjamin C. Davis, Thomas A. Davis, John Ballard and Jane, his wife, Frank Dunlap and Sarah, his wife, Elijah Midkiff and Minerva, his wife, Leonora Davis, Harriet Davis, and

Davis, widow of Thomas Davis, deceased. This

count appears to be for the same lands mentioned in the first count of the original declaration. The second count is in the name of the same plaintiffs, as the second count in the original declaration, and appears to be for the same lands. The third count is in the name of athe said plaintiffs and is for the same lands as the third count in the original declaration. In fact the amended declaration seems to be the same in all respects with the original except as to the additional parties.

It appears, that at the September rules, 1873, Parker Means, B. C. Davis, J. W. Davis, Thomas A. Davis, Wm. M. Means, James F. Dunlap and Elijah Midkiff separately pleaded not guilty to the action. On the 26th day of November, 1873, the court ordered Sylvester Chapman to make a survey of the lands, < fec. It appears, that on the 10th day of December, 1874, the defendants, Samuel Blish, George Merrell, a nd James Brogan appeared in court by their attorneys, "and pleaded not guilty of unlawfully withholding the premises in the declaration described, and of this they put themselves upon the country; and the plaintiffs did likewise; and the cause was continued until the next term as to them.

And on the same day, it also appears, the defendants Felix Childers, Parker Means, J. R. Davis, John Means, Benjamin C. Davis, Thomas A. Davis, John Ballard, and Jane his wife, Frank Dunlap, and Sarah his wife, Elijah Midkiff, and Minerva his wife, LeonoraDavis, Harriet Davis, Sarah Davis and Allen Dunlap, by their attorneys, pleaded, that they were not guilty of unlawfully withholding the premises claimed by the plaintiffs in their declaration; and of this put themselves upon the country. And thereupon on the same day a jury was duly selected, impaneled and sworn, the truth to speak upon the issue joined, and having heard part of the evidence were adjourned until the next day. On the lltl of December, 1874, the jury were discharged from ren dering a verdict, and the case continued, and the cour adjourned for reasons stated in the order of the court Afterwards on the 2d day of June, 1875, came as wel the plaintiffs, by their attorneys, as the defendants Felb Childers, Parker Means, Wm. Means, J. R. Davis, Johi Means, Benjamin C. Davis, Thomas A. Davis, John Bal lard, and Jane his wife, Frank Dunlap, and Sarah hi wife, Elijah Midkiff, and Minerva his wife, Leonora Davis, Harriet Davis, Sarah Davis and Allen Dunlap, by their attorney; and thereupon a jury came, who being selected by lot, impaneled and sworn the trutlyto speak upon the issue joined between the plaintiffs and the said defendants, and not having time to hear the evidence were adjourned over until the next morning at 9 o'clock.

On the 3d day of June, 1875, the court again met, and the jury was again adjourned over; and they were adjourned over from day to day until the 7th day of June, 1875, at which time the jury found and returned to the court their verdict in the case, which is in these words, viz:" We, the jury, find for the defendants, and fix the line as shown on the Sinnett map from C. to D." And on the plaintiffs' motion, the judgment of the court on the verdict was suspended until a future day of the term.

On the 11th day of June, 1875, by consent of the plaintiffs and the defendants, Samuel Blish, George Merrell and James Brogan, an agreement as to a line of partition, &c., was made, and entered of record in the case, and the case dismissed as to said defendants, Samuel Blish, George Merrell and James Brogan. But said agreement and dismissal had nothing to do with the true controversy in fact between the plaintiffs and the defendants.

On the 18th day of June it is recited in the order of the court, made in the cause on that day, that "the plaintiffs having heretofore," moved the court to arrest judgment on the verdict ol the jury, moved the court to set aside the verdict of the jury on account of the vagueness and uncertainty thereof, and award a new trial.

Afterwards, to-wit, at a court held on the 29th day of June, 1876, "came the parties by their attorneys, and thereupon the motion of the plaintiffs in arrest of judgment, and to set aside the verdict and grant a new trial, having been fully argued and maturely considered, the court is of opinion, that the said verdict is in form and e^cct a general verdict for the defendants, and that the addition thereto of the words "and fix the line as shown on the Sinnett map from C. to D.," is mere surplusage. It is therefore considered by the Court, that the said motion be...