Roanoke Land & Imp. Co. v. Karn

• Court: Virginia Supreme Court
• Writing for the Court: LACY, J.
• Citation: Roanoke Land & Imp. Co. v. Karn, 80 Va. 589 (1885)
• Decision Date: 25 June 1885
• Parties: ROANOKE LAND AND IMPROVEMENT CO. v. KARN & HICKSON. ROANOKE LAND AND IMPROVEMENT CO. v. SNEAD & WINSTON.

80 Va. 589

ROANOKE LAND AND IMPROVEMENT CO. v. KARN & HICKSON.

ROANOKE LAND AND IMPROVEMENT CO. v. SNEAD & WINSTON.

Supreme Court of Appeals of Virginia.

June 25, 1885

Error to two judgments of circuit court of Roanoke county, rendered 9th October, 1884, the first in the action of assumpsit brought by Karns & Hickson against the Roanoke Land and Improvement Company, and the second in the action of assumpsit brought by Snead & Winston against the same company, for materials furnished by the plaintiffs respectively, as sub-contractors, to Julius C. Holmes &amp Co., as general contractors, to be used by them in constructing a certain building owned by the said company. The judgments were for the plaintiffs respectively, and to these judgments the said company obtained from one of the judges of this court, writs of error; which writs were heard together.

Opinion states the case.

S Griffin, J. Allen Watts and Wm. Gordon Robertson, for the plaintiff in error.

Burks & Burks and W. W. Larkin, for the defendants in error.

OPINION

LACY J.

The defendants in error instituted their action of assumpsit in the circuit court of Roanoke county, in September, 1883 against the plaintiff in error. The action was in each case for a certain sum claimed to be due them, on account of certain materials furnished by them to a certain firm of contractors, to-wit, Julius C. Holmes & Co., to be used by them in the construction of a certain building of which the plaintiff in error was the owner.

Both parties having waived a jury, the issue, both as to matters of fact and as to matters of law, was decided by the judge in each case, who rendered judgment for the defendants in error, Karn & Hickson, for $1000 and costs, and for the defendants in error, Snead and Winston, $1002.73 and costs.

The plaintiff in error in each case moved the court to set aside the said judgments respectively, as being contrary to the law and the evidence, which said motion was overruled in each case. There was no exception taken at the trial in either case, but the plaintiff in error copied the record in each case, and presented his petition in each case for a writ of error, on account of errors to be found on the face of the plaintiff's declaration in each case, which was awarded in each case on the 10th day of December, 1884, by one of the judges of this court.

The case must be heard and considered in this court upon the errors apparent upon the face of the record. In White v. Toncray, 9 Leigh, Judge Tucker says: " The record is made up of the writ (for the purpose of amending by if necessary); the whole pleadings between the parties; papers of which profert is made or oyer demanded, and such as have been specially submitted to the consideration of the court by a bill of exceptions, a demurrer to evidence, or a special verdict, or are inseparably connected with some paper or evidence so referred to. These, with the several proceedings at the rules, or in court, until the rendition of the judgment, constitute the record in common law suits, and no others." Mandeville v. Penn, 6 Call 78, 83; cited and approved in White v. Toncray, 9 Leigh 351.

The record of a trial, in action at law, does not of itself contain the incidents which invest such occasions frequently with a powerful dramatic interest. It takes no notice of the rulings of the court in admitting or excluding evidence, nor of instructions as to the law given by the court to the jury, much less of the testimony itself, or of the arguments of counsel. It confines itself to a brief abstract, setting forth nothing but the pleadings, the issue, the impaneling of the jury, or the waiver of the jury, and the submission of matters of fact to the court, the verdict and the judgment, or the judgment alone, where the jury is waived.

If the court is supposed to err in any part of its conduct during the trial, in admitting or excluding evidence, in the instructions it gives to the jury as to the law, or otherwise, the record is made to embrace so much of the proceedings as will enable an appellate court to understand, and if need be correct, the ruling and judgment of the court below, by means of a bill of exceptions, which is a statement attested by the signature of the judge of the action of the court and of the circumstances which attended it.

The whole object of a bill of exceptions being to exhibit upon the record the supposed mistakes of the court which tries the cause, which otherwise do not appear upon the record, and cannot be brought before the appellate court to be there reviewed and corrected if erroneous.

At common law no such device as a bill of exceptions existed, so that if one were aggrieved in the particulars indicated he was without remedy. It was first allowed in England by statute Westm. II, 13 Edward I, C. 31, which has in substance been enacted in Virginia, our statute providing that, in the trial of any case at law, in which an appeal, writof error or supersedeas lies to a higher court, a party may except to any opinion of the court, and tender a bill of exceptions, which (if the truth of the case be fairly stated therein) the judge shall sign, and it shall be a part of the record. If no such exceptions are taken to any supposed errors of the court which tries the case, these acts are not in the record, and cannot appear in the transcript thereof, and the party aggrieved remains as at common law without relief. 4 Min. Inst. 728-9. And this applies to the action of the court in refusing to set aside the judgment, and grant a new trial, because the same is contrary to the law and the evidence. The evidence cannot be reviewed by the appellate court, because it is not in the record, and is not made a part by bill of exceptions in any form, and a deposition taken in such case is not a part of the record, although copied in the transcript and certified by the clerk; it is not the province of the clerk to add anything to the record. Cunningham v. Mitchell, 4 Rand. 189; Bowyer v. Chestnut, 4 Leigh 1.

The deposition filed in the case of Karn & Hickson, and certified by the clerk, and the affidavit in the case of Snead & Winston, the notices in each case copied and certified by the clerk, cannot be considered by this court. They are not made a part of the record by the court, and it is not the province of the clerk to make anything a part of the record; his province is to copy the record as it is. In Cunningham v. Mitchell, Judge Green says: " The certificate of the clerk that these papers were the evidence upon which the judgment was founded, cannot be received as a part of the record. His certificate to that effect can have no more effect than that of any other individual. He can certify that such records exist in his office, but not what use was made of them. That ought to have been shown by the record; and it was the duty of the party wishing to avail himself of the fact to have made it a part of the record. " Cunningham v. Mitchell, supra, and Preston v. The Auditor, 1 Call 471.

They are no part of the record, the clerk's certificate that they were read and filed cannot be received as evidence of that fact; for the appellate court can never...