Phelps & Pound v. Smith & Co.

• Decision Date: 24 April 1880
• Citation: 16 W.Va. 522
• Parties: Phelps & Pound v. Smith & Co.
• Court: West Virginia Supreme Court

16 W.Va. 522

Phelps & Pound

v.Smith & Co.

Supreme Court of Appeals of West Virginia.

Decided April 24, 1880.

1. 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.

2. Where the case is submitted to the court, in lieu of a jury, upon its merits, it is presumed that the prerecpisites necessary to the making of the judgment were complied with by the court, whether the record of the judgment recites the fact or not.

3. The plaintiff may as of right amend his declaration at any time before appearance by defendant, and in such case it is not necessary to summon the defendant to plead to the amended declaration.

Writ of error and supersedeas to a judgment of the municipal court of Wheeling, rendered on the 23d day of September, 1875, in an action of assumpsit in said court then pending, wherein D. P. Phelps and G. F. Pound, partners, were plaintiffs, and A. E. Smith and Arthur M. Teece, partners, were defendants, allowed upon the petition of said defendants.

Hon. Gibson L. Cranmer, judge of the municipal court of Wheeling rendered the judgment complained of.

Moore, Judge, furnishes the following statement of the case:

D. P. Phelps and G. F. Pound, partners doing business under the firm name and style of Phelps & Pound, insti- tuted in the municipal court of Wheeling, on the 23d day of September, 1875, an action of assumpsit against; A. E. Smith and Arthur M. Teece, partners, &c., under the firm name of Smith & Co., laying the damages at $1,000.00. The original declaration does not appear in the record of the case. At rules held on the second Monday in October, 1875, an order states, "came the plaintiffs, by their attorney, and filed their declaration in the words and figures following." To the record of this case the clerk has made this note: "The original declaration filed at these rules was altered by the plaintiffs' attorney, and filed at the following December rules as an amended declaration. I cannot tell which part of the amended declaration was the original declaration. (See amended declaration)." At the same rules there was judgment nisi against defendants. At November rules, 1875, defendants failing to appear, the common order was confirmed and enquiry of damages directed; and at a session of the court, November 24, 1875, on motion of plaintiffs leave was given them to amend at rules the declaration; and at rules the second Monday of December, 1875, the plaintiffs filed their amended declaration. The order then adds: "And the defendants being duly summoned and not appearing, on motion of the plaintiffs, by their attorneys, it is ordered that judgment be entered for the plaintiffs against the defendants, unless the defendants should appear and plead to issue at the then next rules." At which day, to wit: at rules held on the second Monday in January, 1876, the common order was confirmed, and enquiry of damages directed. At a session of the court, on the 17th day of January, 1876, the following judgment was rendered:

"This day came the plaintiffs, by their attorneys, and the defendants, who were summoned, though solemnly called, came not, thereupon it is considered by the court that the plaintiffs recover against the defendants the sum of $767.66, aggregate of principal and interest of the damages in the declaration mentioned to this 17th day of January, 1876, with interest from this date until payment, and their costs by them about their suit in this behalf expended."

At a session of said court, held on the 4th day of February, 1876, the record shows the following entry in this case:" This day came the parties, by their attorneys, and the motion of the defendants, by their attorneys, to set aside the judgment heretofore entered at a former day of this term against the defendants was argued by counsel, which motion is overruled, to which opinion of the court overruling said motion the defendants by their attorney, except." Then follows what purports to be a bill of exceptions; but the record shows no order of the court making the bill of exceptions a part of the record of the case.

Smith & Company bring the case before this court by writ of error and supersedeas.

John E. McKennon, for plaintiffs in error.

Pendleton & Pendleton, for defendants in error.

Moore, Judge, delivered the opinion of the Court:

The appellants assign the following grounds of error:

" 1. The affidavit of Mr. Teece, filed in support...