Proudpoot v. Clevenger

• Decision Date: 20 November 1889
• Citation: 33 W.Va. 267
• Parties: Proudpoot v. Clevenger.*(Green, j., Absent.)
• Court: West Virginia Supreme Court

33 W.Va. 267

Proudpoot

v. Clevenger.^*(Green, j., Absent.)

Supreme Court of Appeals of West Virginia.

Submitted September 10, 1889.

Decided November 20, 1889.

1. Demurrer to Evidence---Supreme Court of Appeals---New Trial---Damages---Motion---Practice.

Where a case is decided upon a demurrer to evidence, the judgment will be reviewed by this Court upon such demurrer to evidence, though there was no motion made in the trial-court for a new trial. But, where the ground for a new trial is excessive damages, this rule does not apply, as in that case there must be a motion in the trial-court for a new trial.

2. Administrators and Executors---Promissory Notes---Surety---Mistake.

An administrator, with money of his decedent, pays on a note made by his decedent, as principal, with sureties, an amount in excess of the sum applicable out of the assets to that debt, under the mistaken belief that he was surety in such note, and that the estate would pay a somewhat larger per cent, of its liabilities than it did. He brings in his own name an action of assumpsit against a surety to compel the surety to refund the amount so paid in excess of the ratable share of the assets applicable to such debt. He can not recover of the surety.

Dayton & Dayton and J. J. Davis for plaintiff in error.

J. H. Woods and S. V. Woods for defendant in error.

Brannon. Judge:

Action of assumpsit in the Circuit Court of Barbour county, brought by Chester W. Proudfoot in his individual right against John C. Clevenger, in which there was a jury, a demurrer to the evidence by defendant, a verdict finding for the plaintiff $872.52, subject to such demurrer, a judgment upon such demurrer for the plaintiff against the defendant for that amount, and a writ of error sued out by defendant, Clevenger.

It is urged by appellee's counsel that as no motion to set aside the verdict and grant a new trial was made in the trialcourt, the appellant can not have his demurrer to the evi- dence considered by this Court. For this proposition we are referred to Riddle v. Core, 21 W. Va. 530; Brown v. Brown, 29 W. Va. 777 (2 S. E. Rep. 808.) In Brown v. Brown it was held that where exceptions are taken during trial to the action of the court in giving or refusing instructions, or in admitting or rejecting evidence, unless a motion is made for a new trial in the trial-court the exception will be treated as waived by this Court. In State v. Phares, 24 W. Va. 657, it was broadly laid down that in a case tried by a jury, no matter how many exceptions are taken to rulings of the court during the trial, unless a motion is made to set aside the verdict, and it is overruled, all such errors saved will by the appellate court be deemed as waived. But that is where there has been in fact a verdict on the evidence by the jury, and ought not to apply to a case where the case is taken from the jury, and passed on by the court, and where the verdict is simply a finding conditional entirely upon the decision of the court upon the demurrer to evidence.

The reason given for the position held in State v. Phares is that the party who complained of the rulings, by not asking a new trial, waived his exception; that, if he had insisted upon it by asking a new trial, the error might have been cured by granting a new trial; but in a case of demurrer to evidence it can not be so said, for by averring, as he does by his demurrer, that the evidence will not sustain his adversary's action or defence, he certainly does that which, had there been no demurrer, but a verdict, is equivalent to saying that the evidence is insufficient, and therefore a new trial is asked. Therefore this doctrine obviously does not apply to a case decided upon 'a demurrer to evidence. The case of Riddle v. Core, supra, and Humphrey v. West, 3 Rand. (Va.) 516, on which the doctrine contended for is largely based, were both cases of demurrer to evidence; but note that in them the ground of complaint was excessive damages, and where, though the case be decided on a demurrer to evidence, the party complains of excessive damages, he must ask a new trial below, for there is no reason why in that case the rule above adverted to should not apply. Considering, then, the demurrer to evidence, was the case properly decided upon it by the Circuit Court? We think not. Wait M. Corder as principal, and J. D. Corder and, J. C. Clevenger as his sureties, made a note for $2,000.00 to the First National Bank of Grafton. Wait M. Corder died, and the plaintiff, Proudfoot, qualified as his administrator on 2d October, 1882, and on October 5, 1882, he paid as administrator on this note $1,027.43, and at several times later, in 1883 and 1884, paid interest, his aggregate payments being $1,092.43, leaving $1,000.00 unpaid; and afterwards said administrator paid the bank on the note $485.50, which he claims is the amount of the assets of Wait M. Corner's estate applicable on the balance of that debt, the estate only paying 44.47 per cent. on its liabilities. The bank demanded payment of the balance of Clevenger, the other surety being insolvent; and on October 15, 1885, he paid $555.30, balance of the note. Proudfoot claims that the share of the assets, as shown by administration and its adjustment in a suit involving the assets, going to this debt, was $485.80, and that thus he paid $694.02 too much, and that Clevenger should refund it to him. He says in his evidence that he paid under two misapprehensions one, that the estate would pay at least fifty cents on the dollar; the other, that he was a surety on the note, when in fact he was not. There is no conflicting evidence; the facts are indisputable. When Proudfoot made this payment, he did so at his own suggestion, without any request from Clevenger, and because he thought he was surety....