Perry v. Horn & Carroll.

• Decision Date: 03 November 1883
• Citation: 22 W.Va. 381
• Court: West Virginia Supreme Court
• Parties: Perry v. Horn & Carroll.

22 W.Va. 381

Perry

v.Horn & Carroll.

Supreme Court of Appeals of West Virginia.

Submitted June 19, 1882

Decided November 3, 1883.

1. A rejected plea may be made a part of the record by the defendant on the record objecting or excepting to the rejection; and in such case the Appellate Court will review the action of the court below in rejecting the plea; but if the record does not show, that the defendant objected or excepted to the action of the court in rejecting such plea, the Appellate Court cannot reverse the action of the court so rejecting the plea. (p. 383.) 2. The provision of the statute that "A party may avail himself of

any error appearing on the record, by which he is prejudiced, without excepting thereto," means without obtaining a formed bill of exceptions, provided he objects or excepts on the record to the action of the court complained of, and provided it is such a matter as can be considered without a formal bill of exceptions. (p. 383.)

3. If a defendant does not on the record object or except to the judgment of the court in overruling a motion to set aside the judgment entered at the same term of the court, the Appellate Court will not review such action of the circuit court, (p. 384.)

4. The recovery against a principal and surety in a bond for the payment of money is not limited to the penalty, but may exceed it so far as necessary to include interest from the time of the breach. (p. 384.)

The tacts of the case are stated in the opinion of the Court.

James Hutchinson for plaintiff in error.

W. L. Cole and W. n, Miller for defendants in error.

Johnson, President:

This is an action at law brought in the circuit court of Ritchie county in debt on an injunction-bond. The bond was executed by Horn as principal and Carroll as surety with a penalty of two thousand dollars. The suit was brought in 1879. In October of that year the defendants pleaded "conditions performed." On the 5th day of November, 1879, the defendants tendered three special pleas, to the filing of which the plaintiff objected; his objections to the first and third pleas were overruled, and to these two pleas he severally replied generally; his exception to the second plea was sustained and the plea rejected. The record does not show that the defendants, or either of them excepted or objected to the ruling of the court in rejecting the second plea.

On the 28th day of October, 1881, the following judgment was entered in case:

"This day came the plaintiff by his attorney, and the defendants though solemnly called came not. nor do they further defend this action. And the plaintiff not requiring a jury, on his motion the questions of law and the facts in this case are submitted to the court in lieu of a jury, and the court having heard all the evidence and having maturely considered the same, doth find by reason of the breach of the condition of the writing obligatory in the declaration mentioned, there is justly due the plaintiff the sum of two thousand and sixty-one dollars and six cents as of the 23d day of March, 1878, which exceeds the penalty of said writing obligatory, which said sum was due and payable on the 23d day of March, 1878, and that the payment thereof was demanded on the last mentioned date. It is therefore considered by the court that the plaintiff do recover of the said defendants the said sum of two thousand dollars the penalty in the said writing obligatory mentioned and interest thereon, as damages for the detention thereof, from the 23d day of March, 1878, until paid and his costs about his suit in this behalf expended."

After this judgment was rendered, to-wit on the 18th day of November, 1881, at the same term, at which the judgment was rendered the following order was entered: "This day came the parties by their attorneys and the defendants moved the court to set aside the judgment rendered by default in this cause on a former day of this court against the defendants, supported by the affidavits of defendant, S. J Horn, and James Hutchinson his attorney, and the counter-affidavit of W. L. Cole, one of the attorneys tor the plaintiff, accompanied by the printed record of the Supreme Court of Appeals of this State, together with the argument of counsel thereon. On consideration whereof it is ordered that the said motion be and is hereby set aside, and the judgment en- tered up at a former day of this court he held firm and stable."

This is a strange order. It describes the judgment as entered by default, when the record shows, that the pleas had been entered and issue joined on each. It speaks of "the printed record ol the supreme court of appeals" accompanying the affidavit of plaintiff's attorney. The allusion to the "printed record" of the court of appeals is wholly unintelligible. And the "motion" to set aside the judgment "is set aside" instead of overruled. Still we can readily understand from the order, that the motion to set aside the judgment entered in the ease at a former day of the term was overruled. No objection or exception is noted on the record to this ruling of the court.

To the judgment entered, and the refusal of the court to set it aside the defendants obtained a writ of error.

The first error assigned is to the rejection of defendant's second plea. As before noted, the record fails to disclose that any objection or exception was taken to the ruling of the courtrej ecting such plea. This Court held in Sweeney v. Baker, 13 W. Va. 158, that if a rejected plea is by order of the court made a part of the record, and the order shows that its rejection was excepted to, the Appellate Court will review the action of the court in rejecting such plea, though no formal bill of exceptions was taken to the action of the court in rerecting the plea. Judge Green in delivering the opinion of the Court, at page 215 said: "When the order-book shows that a plea was offered and rejected, and that the defendant excepted or objected to the action of the court in rejecting the plea, such entry is equivalent to an order of the court making the rejected plea apart of the record, and the Appellate Court can look at it and consider the propriety of the order rejecting it." But here no objection was made, and no exception on the record taken to the order of the court rejecting the plea; and of course we can not review the action of the court in rejecting it. The defendants will here he deemed to have waived their objection to the rejection of the plea. The language used in the Code and in the Acts of 1872-3, page 595, that "A party may avail himself of any error appearing upon the record, by which he is prejudiced without excepting thereto, in the said casein 13 W. Va. 215, was held to mean, "without filing a bill of exceptions." It never was intended to mean that a suitor could waive nothing by his silence. If this were so, one suitor...