Point Pleasant Register Publ'g Co. v. County Court Of Mason County.

• Decision Date: 18 December 1934
• Docket Number: (No. 7958)
• Citation: 115 W.Va. 708
• Court: West Virginia Supreme Court
• Parties: Point Pleasant Register Publishing Company v. County Court of Mason County et al.

115 W.Va. 708

Point Pleasant Register Publishing Company

v.County Court of Mason County et al.

(No. 7958)

Supreme Court of Appeals of West Virginia.

Submitted November 21, 1934.

Decided December18, 1934.

1. Mandamus

The judgment of a circuit court in a proceeding in mandamus based upon a finding of fact upon conflicting testimony will not be reversed unless it appears to be clearly wrong.

2. Appeal and Error

When, after a jury trial upon an issue of fact in a mandamus proceeding, a verdict is set aside, and the issue is later re-submitted to the circuit judge and writ of error prosecuted to the judgment entered upon the second submission of the case, the order of the trial court setting aside the verdict on the first submission will not be reviewed if it appears that it was entered more than eight months prior to the granting of the writ of error.

Error to Circuit Court, Mason County.

Proceeding in mandamus by the Point Pleasant Register Publishing Company against the County Court of Mason County and others. To review an adverse judgment, defendants bring error.

Affirmed.

S. P. Bell, F. G. Musgrave, B. H. Blagg and Somemille & Somerville. for plaintiffs in error.

Robert L. Hogg and G. F. Johnson, for defendant in error.

Kenna, Judge:

This proceeding in mandamus was brought by the Point Pleasant Register Publishing Company against the county court of Mason County and its individual members. The purpose of the proceeding is to require the county court of Mason County to cause the financial statement of that county for the year 1932 to be published in the Point Pleasant Register, a newspaper published by the relator. The county court had awarded the contract for the publishing of the financial statement for the year in question to The State Gazette, a paper published at Point Pleasant and admittedly qualified to run the publication in so far as the award of the contract could be made to a Republican paper. The other newspaper selected was the The Citizen, published at Point Pleasant. This paper was selected for the publication of the statement as a Democratic newspaper.

In substance, the petition sets up that The Citizen could not be awarded the contract for the publication of the financial statement because it had not been operating as a newspaper for one year prior to the date of the award, and that the newspaper published by relator is the only newspaper in the county that is a qualified Democratic newspaper, and consequently that it is entitled to be awarded the contract for the publication of the finan- cial statement.

It is virtually admitted that The Citizen could not properly be awarded the contract, but it is contended that the newspaper published by relator is not a Democratic newspaper, but that it is an independent paper with Republican leanings due to its being owned and controlled by a man of statewide reputation as a Republican leader and publisher. On the issue of fact thus made up, there was a trial by jury under the provisions of section 8, article 1, chapter 53, Code of 1931. This trial resulted in a special finding by the jury that the Point Pleasant Register was not a Democratic paper. Upon motion of the relator, this verdict was set aside and thereafter, Code, 53-1-8, relating to proceedings in mandamus having been re-enacted by chapter 26 of the Acts of the Legislature of 1933, with the provision for jury trial omitted, the case was submitted to the trial court under a stipulation that all of the pleadings, proceedings and proof in the former trial were to be considered. Upon this submission, the court found that the Point Pleasant Register was a Democratic newspaper, and awarded the peremptory writ of mandamus as prayed.

The respondents assert that the action of the trial court in setting aside the verdict of the jury on January 5, 1933, was erroneous. The relator insists, without citing authority, that the subsequent submission of the issues to the court without prosecuting a writ of error to the judgment setting aside the verdict of the jury, constitutes a waiver by the respondents of any errors in the first submission so that those questions cannot now be gone into. We do not think that the position taken by the relator can be sustained for the reasons assigned. The re-submission of an action upon issues of fact to a second jury and a verdict and judgment following such submission does not prevent, in a proper state of the record, the consideration of error assigned upon a submission and verdict prior to the last. Gwynn v. Schwartz, 32 W. Va. 487, 9 S. E. 880; Davis v. Telephone Co., 53 W. Va. 616, 45 S. E. 926; DeBoard v. Railway Co., 62 W. Va. 41, 57 S. E. 279. However, as a condition to the consideration of the action of the trial court upon the first verdict, a writ of error upon which such consideration is sought, must be perfected within the time prescribed.by statute. National Citizens Bank v. Bank of Charles Toivn, 114 W. Va. 839, 174 S. E. 420'; D wight v. Razlett, 107 W. Va. 192, 147 S. E. 877, 66 A. L. R. 102; Llonjd v. Kyle, 28 W. Va. 534. The cases cited were in chancery and dealt with the question of appealable decrees. However, we are of the opinion that the same principle would control here. Inasmuch as the action of the trial court in setting aside the verdict rendered at the first hearing of this proceeding occurred considerably more than eight months prior to the date of granting the writ of error herein, we are of the opinion that the action of the circuit court of Mason County in that respect cannot now be reviewed.

The proof shows that the Point Pleasant Register was founded in the year 1862, and that from that time until its purchase by the Point Pleasant Register Company in July, 1930, it was conspicuous as a Democratic weekly newspaper of undoubted political policy. Shortly following that purchase, there was, however, a complete reor-=-ganization. Daily publication was resumed, and the daily, while bearing the same name as the weekly, relator insists is separate and distinct in form...