Mckendree v. Shelton

• Court: West Virginia Supreme Court
• Writing for the Court: BRANNON
• Citation: Mckendree v. Shelton, 51 W. Va. 516, 41 S. E. 909 (W. Va. 1902)
• Decision Date: 07 June 1902
• Parties: McKENDREE v. SHELTON et al.

41 S.E. 909

51 W.Va. 516

McKENDREE

v.SHELTON et al.

Supreme Court of Appeals of West Virginia.

June 7, 1902.

APPEAL—BILL OF EXCEPTIONS—PRESUMPTIONS.

1. When a paper which is to constitute a part of a bill of exceptions is not incorporated into the body of the bill, it must be annexed to it, or so marked by letter, number, or other means of identification mentioned in the bill as to leave no doubt, when found in the record, that it is the one referred to in the bill of exceptions; otherwise it will be disregarded. Leftwitch v. Lecanu, 4 Wall. 187, 18 L. Ed. 388.

2. That a copy of a paper is attached to a pleading in the case, which purports to be the same as the paper mentioned in the bill of exceptions, does not make it a part of that bill, nor can this court presume that it is the same paper read in evidence and excepted to. Left witch v. Lecanu, 4 Wall. 187, 18 L. Ed. 388. (Syllabus by the Court.)

Error to circuit court Cabell county; E. S Doolittle, Judge.

Action by George McKendree against J. R. Shelton and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Simms & Enslow, for plaintiffs in error.

Campbell, Holt & Duncan, for defendant in error.

BRANNON, J. There were three suits In the circuit court of Cabell county, —an action of debt by McKendree against Shelton and others, a chancery suit by McKendree against Shelton, and a chancery suit by Shelton against McKendree, —and they were all referred to a commissioner to report upon the matters involved in them, and he made a report in favor of McKendree, and the court, upon a jury being waived, tried the action at law, confirmed the report, and rendered judgment for McKendree, from which judgment Shelton obtained a writ of error. In this action of debt an order was made by consent that the report of the commissioner, together with all the evidence taken and filed before him in support of said report, the exceptions thereto, and certain affidavits in one of the chancery suits, should be taken and treated as filed in the action of debt. It does not further identify the testimony. The attorneys for McKendree say that the judgment is presumed to be free of error, unless it be shown otherwise; and that as it depended on evidence, we cannot examine the judgment, because there is no evidence that is legally a part of the record to be examined. There is one bill of exceptions, and it says that the plaintiff offered in evidence and proved the facts set out in the testimony and exhibits filed with the commissioner's report, and the report of Thomas R. Shepherd, special commissioner, and the exceptions thereto, and affidavits of certain named persons. No further does this bill of exceptions identify these papers. I have no doubt that we could regard the commissioner's report as part of the record and the exceptions and those affidavits, under the rule that "when a bill of exceptions makes such reference to a paper as will enable it to be safely copied into the...