MONONGAHELA Ry. Co. v. WlLSON

• Decision Date: 24 September 1940
• Docket Number: No. 9117,9117
• Citation: 122 W.Va. 467
• Court: West Virginia Supreme Court
• Parties: MONONGAHELA RAILWAY COMPANY v. MlNTER L. WlLSON, Judge, etc.

122 W.Va. 467

MONONGAHELA RAILWAY COMPANY

v.MlNTER L. WlLSON, Judge, etc.

No. 9117

Supreme Court of Appeals of West Virginia.

Submitted September 4, 1940.

Decided September 24, 1940.

1. Appeal and Error

Under Code 56-6-35, bills of exceptions do not become a part of the record of the case to which they pertain until the entry of an order identifying them and making them a part of the record.

2. Motions

An order nunc pro tunc can only be entered where the intent to enter an order in the first instance is shown by some entry or memorandum upon the records or quasi records of the court.

Original mandamus proceeding by the Monongahela Railway Company against Minter L. Wilson, Judge, etc., to compel the respondent to entef a nunc pro tunc order making certain bills of exceptions signed by the respondent a part of the record in an action at law in which the Monongahela Railway Company was defendant.

Writ refused.

Rollo J. Conley, for relator.

Ernest Gilbert, Sr., and Kermit R. Mason, for respondent.

Fox, Judge:

This is a proceeding in mandamus seeking to compel the Judge of the Circuit Court of Monongalia County to enter a nunc pro tunc order making certain bills of exceptions signed by said Judge on the 13th day of May, 1940, a part of the record in an action at law, pending in said court, in which Carroll Wayne Davis is plaintiff and the Monongahela Railway Company defendant. The pertinent circumstances necessary to an understanding of the points raised may be stated as follows:

At November Rules, 1939, Carroll Wayne Davis filed his declaration in trespass on the case against the Railway Company, seeking to recover damages for personal injuries alleged to have been sustained by him, and a trial of the action was had at the January term, 1940, of the Circuit Court of Monongalia County, and verdict returned in favor of the plaintiff in the sum of $25,000.00. A motion to set aside the said verdict was overruled by the court on March 7, 1940, and judgment entered thereon, to which an exception was duly taken and the judgment suspended for a period of sixty days from the adjournment of the term of court at which the same was entered.^ This term of court adjourned on the 19th day of March, 1940, and under Code 56-6-35 the defendant was entitled to a proper bill of exceptions if the same was tendered to the court in term or in vacation within sixty days after said adjournment. On May 13, 1940, and within the sixty-day period, the Railway Company presented to the Judge of said court, and while the April term thereof was in session, bills of exceptions Nos. 1 and 2, which were on that day signed by the Judge. This term of court adjourned on the 15th day of May, and neither at the time the bills were signed, nor at any time prior to the adjournment of the April term, or within the sixty-day period, was any order entered showing the signing of the said bills of exceptions and making the same a part of the record. The Judge of the Circuit Court takes the position that it was the obligation of the attorney for the defendant to see to the preparation and presentation of such order for entry, and the attorney relies upon his understanding that orders of such character were entered by the clerk of the court as a matter of course upon the filing of signed bills of exceptions. Whatever may be the merit of these contentions or understandings, the fact is that no such order was entered, nor was there any memorandum of the court directing the entry of the order, or other direction on its part in relation thereto, unless it be the language of the bills, in each of which it is stated that the matters contained therein are made a part of the record. On May 22, 1940, in vacation of said court, and after the expiration of the sixty-day period in which the bills of exceptions could be signed, a nunc pro tunc order was presented to the Judge of said court, and asked to be entered, as of May 13, 1940, the date when the bills of exceptions were signed, which order the Judge refused to enter, and this proceeding is prosecuted to compel him to do so. It is apparently conceded that the order sought should be made effective within the sixty-day period within which the bills could be signed.

The question raised as to the necessity of an order of the court or the judge thereof in vacation as a prerequisite to their becoming a part of the record, must be determined by the provisions of the statute, Code 56-6-35. This statute in its original form was inherited from Virginia, and appears in Chapter 131, Section 9, Code 1868, and provides:

"In the trial of a case at law, in which an appeal lies to the court of appeals, a party may except to the opinion of the court, and tender a bill of exceptions, which (if the truth of the case be fairly stated therein) the judge shall sign, and it shall be a part of the record of the case. If any judge refuse to sign such bill of exceptions, he may be compelled to do so by the court of appeals by mandamus; in which case a bill of exceptions shall be a part of the record to the same extent as if it had been signed by the judge at the proper time. A party may avail himself of any error, appearing on the record, by which he is prejudiced, without excepting thereto."

This section was amended in minor particulars by Chapter 206, Acts of the Legislature, 1873, and by Section 9, Chapter 120, Acts of 1882. The legislature of 1891, (Chapter 100, Acts 1891), amended the section in a material way, providing, among other things, that the court might in vacation, and within thirty days from the adjournment of the term, sign bills of exceptions and certify the same to the clerk of the court who was required to enter the certification upon the law order book of the court. It also provided that if an action or opinion of the court be upon any question involving the evidence, or any part thereof, the court should certify all the evidence touching the question and sign such bills of exceptions as might fairly state the case and provided that "it shall be made a part of the record in the case." This section continued without amendment until the enactment of Code 56-6-35 in 1931.

The first decisions of this Court were based upon the statute as it was prior to the amendment of 1891. It will be recalled that under the early statutes bills of exceptions were required to be signed during term time, and notwithstanding the provisions of such statutes that upon the signing of a bill of exceptions "it shall be a part of the record of the case", this Court has uniformly held that the signing of such bills must be shown by the record of the court. For example, in Phelps & Pound v. Smith & Co., 16 W. Va. 522, point 1 of the syllabus, is that "where the record does not show that a bill of exceptions had been 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." In Quaker City National Bank v. Showacre, 26 W. Va. 48? Judge Snyder, speaking for this Court, said:

"It is too well settled to require any...