Pettry v. Chesapeake & O. Ry. Co.

Decision Date31 March 1964
Docket NumberNo. 12206,12206
Citation135 S.E.2d 729,148 W.Va. 443
CourtWest Virginia Supreme Court
PartiesFred PETTRY, Administrator of the Estate of Sandra Kay Pettry v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a Corporation.

Syllabus by the Court

1. This Court will not consider questions, nonjurisdictional in their nature, not acted upon by the circuit court as an intermediate appellate court.

2. Rule 80(f), R.C.P., abolishes bills and certificates of exceptions, but must be read in connection with Rule 81(a)(1), which clearly states that the rules do not apply to any case which comes before a circuit court upon appeal from any court of record. Therefore, a transcript of the proceedings had and testimony taken at a hearing or trial in an inferior court of record, certified only by the official court reporter and filed in the trial court under the provisions of Rule 80, R.C.P., cannot be used as a substitute for bills or certificates of exceptions and in lieu thereof on appeals to the circuit court as an intermediate appellate court.

3. In any case in which bills of exceptions or certificates in lieu thereof are necessary, the failure to obtain such bill or certificate of exceptions is jurisdictional and may be raised by the parties or the court on its own motion.

Huddleston & Bolen, Amos A. Bolen, Edwin W. Conley, Huntington, for appellant.

W. Hayes Pettry, Charleston, Rudolph L. Di Trapano, Cabin Creek, for appellee.

BERRY, Judge.

This case involves a civil action instituted in the Common Pleas Court of Kanawha County by Fred Pettry, Administrator for the Estate of Sandra Kay Pettry, deceased, against the Chesapeake and Ohio Railway Company, a corporation. The plaintiff's decedent, a nineteen months old child was struck and killed by one of the defendant's freight trains near Coalburg, Kanawha County, West Virginia on September 1, 1960.

At the trial of the case in the Common Pleas Court the jury returned a verdict in favor of the plaintiff in the amount of $10,000. The defendant's motion for a judgment notwithstanding the verdict or in the alternative for a new trial was overruled by the trial court and a judgment on the verdict was rendered for the plaintiff by an order entered in the trial court December 20, 1961. On April 19, 1962, almost four months after the final judgment was entered by the trial court, and almost at the expiration of the time allowed for such appeals a petition for an appeal addressed to the Judge of the Circuit Court of Kanawha County as an Intermediate Appellate Court was filed, with the original record composed of orders, papers, exhibits and a transcript of the testimony and proceedings had before the trial court certified only by the official reporter being made a part of the petition and presented therewith. The transcript of the testimony and proceedings was filed in the trial court at the same time the petition was filed, that is, on April 19, 1962, although the transcript of the testimony and proceedings was completed and had been certified by the official reporter on January 13, 1962, over three months before it was filed with the petition to the Circuit Court for an appeal. On the same day the petition for appeal was filed in the trial court, it was also filed in the Circuit Court as an Intermediate Appellate Court and a copy of the petition for an appeal was sent to the appellee, plaintiff below, which indicated that the transcript had been filed in the trial court at that time. The record was not indexed as required by Code, 58-4-6, nor was there any identification or certification of any nature by the clerk of the trial court. Although the record shows that a bill or certificate of exception in proper form was prepared by the official reporter, the lines for the date and certification by the Judge of the Common Pleas Court of Kanawha County were left blank.

The Circuit Court of Kanawha County, upon considering the petition for appeal, refused to grant a writ of error and gave as the reason therefor the failure on the part of the appellant to give prompt notice to the appellee of the filing of the transcript of the proceedings had and testimony taken during the trial, as required by Rule 80(c), West Virginia Rules of Civil Procedure.

Upon application to this Court, an appeal and supersedeas to the order dated June 5, 1962, of the Circuit Court of Kanawha County, refusing to grant the writ of error or appeal, was granted on December 11, 1962. This case was docketed for the 1963 Special April Term of this Court and was submitted to the Court for decision on arguments and briefs May 7, 1963.

Counsel for the appellant assigned as error the holding of the Intermediate Appellate Court that prompt notice had not been given as to the filing of the transcript of the testimony and proceedings because they had not only mailed a copy of the petition on the day it was filed in the trial court and the Intermediate Appellate Court, but they had also sent notice of the filing three days after the petition and record was filed in the Intermediate Appellate Court. The appellee, plaintiff below, asserted that timely notice had not been given to them of the filing of the transcript but also contended in this Court that the transcript certified by the official reporter and filed with the petition for an appeal to the Circuit Court was not the proper procedure to be used in the instant case which came before the Circuit Court on appeal from an inferior court of record. The reason given for this latter contention was that Rule 80 of the West Virginia Rules of Civil Procedure, which abolished bills and certificates of exceptions and substituted a transcript of the proceedings had and testimony taken at the trial in lieu of such bills and certificates of exceptions, was not applicable on appeals from the Common Pleas Court to the Circuit Court acting as an Intermediate Appellate Court by virtue of the qualifications and exceptions contained in Rule 81(a)(1), West Virginia Rules of Civil Procedure, and that bills or certificates of exceptions were still necessary for proper appellate procedure in such cases.

Inasmuch as the Circuit Court of Kanawha County refused to grant the writ of error or appeal on the grounds that it did not have jurisdiction to consider the appeal and did not pass on the merits or questions of substantive law relative to the case and because the writ of error granted by this Court to the judgment of the Circuit Court is based purely on jurisdictional grounds, this Court will only direct its attention to such grounds. It has been uniformly held by this Court that it will not consider questions nonjurisdictional in their nature not acted upon by the circuit court. Armstrong v. Town of Grafton, 23 W.Va. 50; Kesler v. Lapham, 46 W.Va. 293, 33 S.E. 289; Nuzum v. Nuzum, 77 W.Va. 202, 87 S.E. 463; Amherst Coal Co. v. Prockter Coal Co., 80 W.Va. 171, 92 S.E. 253; Cameron v. Cameron, 105 W.Va. 621, 143 S.E. 349; Cook v. Collins, 131 W.Va. 475, 48 S.E.2d 161; In re Nicholas' Estate, 142 W.Va. 80, 94 S.E.2d 452.

On June 18, 1963, an opinion was prepared and filed by the majority of this Court affirming the Circuit Court setting out several grounds and reasons therefor not previously given by the Circuit Court as its reason for refusing to grant the writ of error, and also discussing the reason given by the Circuit Court in the opinion, all of which was done at the time for the benefit of the Bar in connection with such matters.

A petition for a rehearing was filed by the appellant on July 17, 1963, stating as its reasons for requesting the granting of the rehearing that some of the matters discussed in the opinion had not been raised by the parties, that no opportunity had been afforded them to brief and argue these matters, that great interest had been evoked in the State Bar and that concern had been expressed in connection with the opinion, and that it was believed if a rehearing was granted that interested and official groups would desire to be heard. This Court granted the rehearing on December 13, 1963, and the rehearing was set for argument on January 28, 1964, at which time it was again submitted to the Court on arguments by the parties. No other interested or official groups appeared or asked to be heard.

Upon the rehearing only two of the grounds involved in this case were argued; namely, whether or not bills or certificates of exceptions were required in cases of this kind, and if such bills and certificates of exceptions were not required, then whether or not prompt notice had been given in connection with the filing of the transcript of the proceedings had and testimony taken at the trial. It will only be necessary for the disposition of this case to consider the first matter argued and briefed.

No bill of exception or certificate in lieu thereof was obtained in connection with this appeal. The transcript, with copy thereof, was completed and certified by the official reporter about three weeks after final judgment of December 20, 1961, was entered by the Court. Both the transcript and copy were apparently obtained from the court reporter by the attorneys for the appellant at that time and not filed in the trial court for over three months after the completion of the transcript, and even then filed only with the petition for an appeal to the circuit court. No copy of the transcript of the testimony or proceedings was filed by the reporter in the office of the Clerk of the Common Pleas Court of Kanawha County, which is required in all cases of appeals by the provisions of Code, 51-7-4, as amended. It can be seen that proper procedure for appeal in any event was not followed in the case at bar.

It is the contention of the appellee that a bill or certificate of exception was necessary in order to effect an appeal to the Circuit Court in this case. It is the contention of the...

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