Palmer v. Magers

CourtSupreme Court of West Virginia
Writing for the CourtPOFFENBARGER, J.
Citation85 W.Va. 415
PartiesLlnzy Palmer v. Everett E. Magers.
Decision Date27 January 1920

85 W.Va. 415

Llnzy Palmer
v.
Everett E. Magers.

Supreme Court of Appeals of West Virginia.

Submitted January 20, 1920.
Decided January 27, 1920.


[85 W.Va. 415]

1. Continuance Motion Based on Absence of Witness in Distant

County Only Summoned a Week Before Trial Properly Refused.

A motion for a continuance based upon the absence of a witness for whom process went to a distant county, only about a week before the date fixed for the trial, and without information to the officer, so far as the record shows, as to the place of residence or abode of the witness in such county, and unaccompanied by any showing of probability of procurement of his attendance at the next term of the court, may be properly overruled. (p. 417).

2. Trial Instructions Ignoring One of Tuo Theories Supported

by Evidence in Boundary Line Control Are Erroneous.

On the trial of an issue as to the location of a boundary line, instructions based upon only one of two theories of location both of which are supported by some evidence in the case, and wholly ignoring the other, are erroneous and justify the award of a new trial, they being the only instruction given. (p. 420).

3. Same Instructions Based on Part of Evidence Only Gives

Undue Prominence to Evidence.

An instruction founded upon only a part of the conflicting evidence in a case and ignoring the residue thereof, given in

[85 W.Va. 416]

the absence of any others founded upon such residue, unduly emphasizes the evidence on which it rests and is erroneous for that reason, (p. 420).

4. Forcible Entry and Detainer Refusal of Instruction as to

Law of Peaceable Entry Erroneous in Boundary Case Notwithstanding Absence of Evidence of Forcible Entry. On the trial of an action of unlawful detainer, the right in which is dependent upon the true location of a disputed boundary line, the refusal of an instruction requested by the defendant and enunciating the law of peaceable entry upon disputed premises, under a claim of right, is erroneous, even though there is a lack of evidence of forcible entry in the case, (p. 422).

5. Trial Instructions as to Immaterial Facts Incidentally Re-

vealed on Trial Properly Refused.

A trial court may properly refuse instructions based upon immaterial and non-probative facts incidentally revealed on the trial of an issue. (p. 422).

6. Boundaries Instruction That Agreement as Disputed Bound-

aries Was Entered Into Under Mistake May Properly be Given.

On an issue as to the establishment of a disputed line by agreement, the court may properly instruct the jury that the agreement is not binding, if entered into under a mistake, in the absence of proof of conduct making it absolute and conclusive, and should do so upon a proper request, (p. 422).

7. Trial Instructions Limiting Issues to Evidence Are Proper.

When one party to a trial improperly predicates his case upon only a part of the evidence, the other may properly request instructions not ignoring any evidence favorable to his antagonist, but limited to the issue he has tendered, and, if requested, they should be given. (p. 422).

8. New Trial Motion to Set Aside Verdict Based on Preponder-

ance of Evidence Against it Should be Sustained.

A motion to set aside a verdict, based upon clear and decided weight and preponderance of the evidence against it, should be sustained. (p. 422).

9. Boundaries Controlling Effect of Fixed Terminus of Bound-

ary Line Stated.

If one terminus of a disputed boundary line called for in a deed, is clearly fixed and rendered certain by evidence and the other unidentified and uncertain and a line run from such fixed corner agres perfectly with the calls of the deed for course

[85 W.Va. 417]

and distance, the former governs and controls the location of the other and the distance called for in another line running to it. (p. 422).

Error to Circuit Court, Marshall County.

Suit by Linzy Palmer against Everett E. Magers. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

J. Howard Holt, for plaintiff in error.

D. B. Evans and Martin Brown, for defendant in error.

Poffenbarger, Judge:

The first complaint on this writ of error to a judgment for the plaintiff, in an action of unlawful detainer, is based on the overruling of a motion for a continuance. The affidavit fails to show requisite diligence. The case was set for trial and tried in Marshall county, October 17, 3918, and the process for the witness was sent to Kanawha county October 11, 1918, and came back with a return of "not found" endorsed thereon. The meagerness of time allowed may have prevented diligent search for the witness, and the affidavit fails to show that the writ was accompanied by information to the officer, as to the residence or location of the witness in Kanawha county, which might have enabled him to serve the subpoena. Three or four days is a very short period in which to locate a stranger in a large and populous county. A serious effort to obtain the attendance of the witness under such circumstances, would have necessitated ascertainment of his place of residence and warning to him of intention to require his attendance. Wytheville Ins. & B. Co., v. Teiger, 90 Ya. 277, 283, R. & M. Railroad Co. v. Humphreys, 90 Ya. 425. Another fatal defect in the case made for a continuance was failure to prove attendance of the absent witness at the next term could probably be secured, or his deposition taken. Since an allowance of a continuance on account of the absence of a witness whose evidence can never be obtained would be useless and idle, this fact should always be shown in support of the motion. Phillips v. Com., 90 Ya. 401; State v. Brown, 62 W. Ya. 546.

The land in controversy has an area of not more than two acres and the controversy turns on the location of a division

[85 W.Va. 418]

line. The parties derived their titles from a common source, their farms having once constituted a larger one owned by Miles Bonar, and containing 354 acres, as surveyed by W. V. Hukill, in March, 1902, By deed dated, October 17, 1904 Bonar conveyed it to W. B. Hicks, who had a division line run through it, by S. Howe Bonar, an engineer, cutting it into two parts containing, respectively, as estimated by the surveyor, 159.8 acres and 196.5 acres, for conveyances to two or more persons named Woodruff. By a deed dated, April 1, 1905, Hicks conveyed the larger part to Eli as B. Woodruff, who conveyed it to the plaintiff, by a deed dated, June 21, 1906. Hicks conveyed the other part to Elias B. and Silas H. Woodruff, by a deed dated, April 1, 1905,...

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25 practice notes
  • Campbell v. Campbell, No. 12122
    • United States
    • Supreme Court of West Virginia
    • February 27, 1962
    ...806, 65 S.E.2d 201; Gall v. Cowell, 118 W.Va. 263, 190 S.E. 130; Cannady v. Chestonia, 106 W.Va. 254, 145 S.E. 390; Palmer v. Magers, 85 W.Va. 415, 102 S.E. 100; Griffith v. American Coal Company, 78 W.Va. 34, 88 S.E. 595; Kelley v. Aetna Insurance Company, 75 W.Va. 637, 84 S.E. 502; Sims v......
  • Mulroy v. Co-operative Transit Co., CO-OPERATIVE
    • United States
    • Supreme Court of West Virginia
    • November 13, 1956
    ...by the court. Kap-Tex, Inc. v. Romans, 136 W.Va. 489, 67 S.E.2d 847; Cannady v. Chestonia, 106 W.Va. 254, 145 S.E. 390; Palmer v. Magers, 85 W.Va. 415, 102 S.E. 100; Griffith v. American Coal Company, 78 W.Va. 34, 88 S.E. 595; Kelley Page 73 v. Aenta Insurance Company, 75 W.Va. 637, 84 S.E.......
  • Rees Elec. Co. v. Mullens Smokeless Coal Co., No. 10724
    • United States
    • Supreme Court of West Virginia
    • November 1, 1955
    ...539; Kap-Tex v. Romans, 136 W.Va. 489, 67 S.E.2d 847; Cannady v. Chestonia, 106 W.Va. 254, 145 S.E. 390; Palmer v. [141 W.Va. 256] Magers, 85 W.Va. 415, 102 S.E. 100; Griffith v. American Coal Company, 78 W.Va. 34, 88 S.E. 595; Kelley v. Aetna Insurance Company, 75 W.Va. 637, 84 S.E. 502; S......
  • Hollen v. Linger, No. 12556
    • United States
    • Supreme Court of West Virginia
    • November 29, 1966
    ...847; DeLuz v. Board, 135 W.Va. 806, 65 S.E.2d 201; Cannady v. Chestonia, 106 W.Va. 254, 145 S.E. 390; [151 W.Va. 267] Palmer v. Magers, 85 W.Va. 415, 102 S.E. 100; Kelley v. Aetna Insurance Company, 75 W.Va. 637, 84 S.E. 502; Sims v. Carpenter, Frazier and Company, 68 W.Va. 223, 69 S.E. 794......
  • Request a trial to view additional results
25 cases
  • Campbell v. Campbell, No. 12122
    • United States
    • Supreme Court of West Virginia
    • February 27, 1962
    ...806, 65 S.E.2d 201; Gall v. Cowell, 118 W.Va. 263, 190 S.E. 130; Cannady v. Chestonia, 106 W.Va. 254, 145 S.E. 390; Palmer v. Magers, 85 W.Va. 415, 102 S.E. 100; Griffith v. American Coal Company, 78 W.Va. 34, 88 S.E. 595; Kelley v. Aetna Insurance Company, 75 W.Va. 637, 84 S.E. 502; Sims v......
  • Mulroy v. Co-operative Transit Co., CO-OPERATIVE
    • United States
    • Supreme Court of West Virginia
    • November 13, 1956
    ...by the court. Kap-Tex, Inc. v. Romans, 136 W.Va. 489, 67 S.E.2d 847; Cannady v. Chestonia, 106 W.Va. 254, 145 S.E. 390; Palmer v. Magers, 85 W.Va. 415, 102 S.E. 100; Griffith v. American Coal Company, 78 W.Va. 34, 88 S.E. 595; Kelley Page 73 v. Aenta Insurance Company, 75 W.Va. 637, 84 S.E.......
  • Rees Elec. Co. v. Mullens Smokeless Coal Co., No. 10724
    • United States
    • Supreme Court of West Virginia
    • November 1, 1955
    ...539; Kap-Tex v. Romans, 136 W.Va. 489, 67 S.E.2d 847; Cannady v. Chestonia, 106 W.Va. 254, 145 S.E. 390; Palmer v. [141 W.Va. 256] Magers, 85 W.Va. 415, 102 S.E. 100; Griffith v. American Coal Company, 78 W.Va. 34, 88 S.E. 595; Kelley v. Aetna Insurance Company, 75 W.Va. 637, 84 S.E. 502; S......
  • Hollen v. Linger, No. 12556
    • United States
    • Supreme Court of West Virginia
    • November 29, 1966
    ...847; DeLuz v. Board, 135 W.Va. 806, 65 S.E.2d 201; Cannady v. Chestonia, 106 W.Va. 254, 145 S.E. 390; [151 W.Va. 267] Palmer v. Magers, 85 W.Va. 415, 102 S.E. 100; Kelley v. Aetna Insurance Company, 75 W.Va. 637, 84 S.E. 502; Sims v. Carpenter, Frazier and Company, 68 W.Va. 223, 69 S.E. 794......
  • Request a trial to view additional results

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