Payne v. Riggs et als.

• Decision Date: 27 March 1917
• Citation: 80 W.Va. 57
• Parties: Payne v. Riggs et als.
• Court: West Virginia Supreme Court

80 W.Va. 57

Payne

v.Riggs et als.

Supreme Court of Appeals of West Virginia.

Submitted March 20, 1917.

Decided March 27, 1917.

1. Appeal and Error Preservation of Grounds of Beview Motion

to Set Aside Verdict Exception.

In order to obtain a review of the action of a circuit court upon a trial had before a jury it is necessary that the record in the court below show that the complaining party made a motion to set aside the verdict of the jury, that the same was overruled, and that he took proper exception thereto. (p. 58).

2. Motions Orders Entry Order Nunc Pro Tunc.

An order can be entered nunc pro tunc to make a record of what was previously done by the court although not then entered, but where the court has wholly omitted to make an order which it might or ought to have made, it cannot afterward be entered nunce pro tunc. (p. 59).

3. Appeal and Error Harmless Error Refusal to Allow Filing of

Plea.

A party is not injured by the action of the circuit court in refusing to allow a plea to be tiled because the same is not verified when such plea is not required by law to be verified, where he afterward swears to the plea and the same is allowed to be filed, (p. 60).

4. Landlord and Tenant Distress Forthcoming Bond Execution

Motion to Quash Notice.

A motion to quash a notice for the award of an execution on a forthcoming bond may be made within the same time that a plea may be received, but not after a plea has been filed unless the same be withdrawn by leave of the court. (p. 61).

5. Same Distress Forthcoming Bond Execution Motion.

Upon a motion for the award of execution upon a forthcoming bond, in case the plaintiff in such motion is entitled to recover, execution should be awarded for the value of the property taken under said bond, unless such value is in excess of the amount of the plaintiff's claim, in which case the award of execution should be for the amount of the plaintiff's claim with costs. (p. 61).

Error to Circuit Court, Kanawha County.

Distress proceeding by J. M. Payne against the Scott Motor Car Company, in which H. L. Riggs filed a claim and gave a forthcoming bond, and in which, after he failed to have the property forthcoming, plaintiff moved for execution on the bond. Judgment for plaintiff, and defendants bring error.

Affirmed.

Alexander & McCabe and Morton & Mohler, for plaintiffs in error.

Payne, Minor & Bouchelle and Francis W. Payne, for defendant in error.

Ritz, Judge:

The plaintiff, being the owner of a certain building situate in the city of Charleston which had been occupied by Scott Motor Car Company, sued out a distress warrant against said company for rent in arrears. Certain property found upon the premises was levied on under the distress warrant. The defendant Riggs claimed an interest in the property levied upon and gave a bond conditioned to have the property forthcoming at the time fixed for the sale thereof by the officer making the levy. He did not have the property forthcoming at that time, and this proceeding, by way of motion for execution on the forthcoming bond, was brought in the circuit court of Kanawha county.

At the outset we are met with a motion to dismiss the writ of error as improvidently awarded, the ground for such motion being that the defendants made no motion in the circuit court to set aside the verdict of the jury upon which judgment was rendered, and that no such motion having been made in the circuit court, no writ of error can be prosecuted because of errors committed upon the trial. The record in this case does not disclose that any motion was made by the defendants, or either of them, to set aside the verdict of the jury by an order entered at the term at which the judgment was rendered, and unless this failure was cured by the subsequent action of the circuit court then this Court cannot review the proceedings had upon the trial before the jury. State v. Phares, 24 W. Va. 657; Danks v. Rodelieaver, 26 W. Va. 274; Fisher v. Camp, 26 W. Va. 576; Kemble v. Herndon, 28 W. Va. 524; Brown v. Brown, 29 W. Va. 777; State v. Rollins, 31 W. Va. 363; Freeburn v. Ry. Co., decided at the present term of this conrt.

The defendants, however, contend that the record does show that they made a motion to set aside the verdict of the jury and grant to them a new trial. It appears that at the term subsequent to that at which the judgment complained of was rendered the defendants by their counsel appeared before the circuit court and asked to have an order entered nunc pro tunc showing that they had made a motion for a new trial at the previous term, and that the same was overruled, and that they excepted to such ruling. The circuit judge, after reciting the facts upon which it is based, entered at that time, as for the previous term, an order filing the motion for a new trial, overruling the same, and showing defendants' exception to such ruling. The facts recited by the court in his order are that counsel appeared at the former term of court for the purpose of making such motion, but that the court being engaged in other matters could not entertain it at that time. It does not show that he in fact directed any order to be entered at that term, either fling the motion for a new trial, or passing upon it. The order which was entered at a subsequent term of court upon its face shows that it was not an order which had been directed at the prior term, but was an order showing the action of the court then had. A nunc pro tunc order cannot be entered to make the action of the court speak as of a date different from the day upon which such action was had, the office of such nunc pro tunc order being to make the record speak the truth. If the court had entertained the motion and had overruled it at the previous term of the court and directed an order to be entered showing this fact, and the clerk had failed to enter the order, then a nunc pro tunc order could be entered showing this fact. The court's order entered in this case, which is claimed to be a nunc pro tunc order, shows upon its face that he did not direct such an order to be entered at the former term, and of course it must necessarily follow that if no order was made by the court at that term he could not at a subsequent time make an order and direct it to be entered as of a term of the court at which no such action was had. The doctrine is very succinctly stated in 29 Cyc. 1516 to be: "An order can be entered nunc pro tunc to make a record of what was previously done by the court, although not then entered, but where the court has wholly omitted to make an order, which it might or ought to have made, it cannot afterward be entered nunc pro tunc." The same doctrine is announced in Vance v. Ry. Co., 53 W. Va. 338; Gray v. Brignardello, 1 Wall. 627; Wilson v. Vance, 55 Ind. 394; O'Sullivan v. People, (111.) 20 L. R. A. 143. It is clear from what has been said that there is nothing in this record to show that a motion for a new trial was made and overruled and exception taken thereto at the term of court at which the verdict was returned and the judgment complained of rendered, and the attempt by nunc pro tunc order to show that such was the case fails of its purpose.

It is contended, however, that we should not dismiss the appeal as improvidently awarded for the reason that exceptions are taken to the pleadings and also to the judgment entered by the court, It is quite true that a...