Ruffner v. Hill et al

• Decision Date: 09 December 1882
• Citation: Ruffner v. Hill et al, 21 W.Va. 152 (W. Va. 1882)
• Court: West Virginia Supreme Court
• Parties: Ruffner v. Hill et al

21 W.Va. 152

Ruffner

v.Hill et al

Supreme Court of Appeals of West Virginia.

Submitted January 13, 1881

Decided December 9, 1882.

(^*Snyder, Judge, Absent.)

If a circuit court enter up a judgment on the verdict of a jury, sworn to try the issue joined, in any case criminal or civil, including an action of ejectment where no issue has been joined, or no plea riled by the defendant, such judgment will for such reason only be reversed by the Appellate Court.

Writ of error and supersedeas to a judgment of the circuit court of the county of Kanawha, rendered on the 20th day of December, 1875, in an action in said court then pending, wherein Joel Ruffner was plaintiff and G. W. Hill and others were defendants, allowed upon the petition of said defendants.

Hon. Joseph Smith, judge of the seventh judicial circuit, rendered the judgment complained of.

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

This was an action of ejectment instituted December 2, 1871, in the circuit court of Clay county, by serving on the defendants William Moore and John Mullins, a copy of the declaration and a notice addressed to all the defendants including G. W. Hill, that this declaration against them would be filed on the first day of the next April term. This notice was not served on the defendant G. W. Hill, he not being found in the county. The declaration was in the ordinary form of a declaration in ejectment, and was to recover a tract of land in said county of three hundred acres, more or less, whose boundaries are not set out in the declaration. The case was continued from time to time till the March term 1874, when the parties came by their attorneys and by consent in writing, and for reasons appearing to the court, the cause was transferred to the circuit court of the county of Kanawha.

On May the 11th, 1874, an order was entered in the circuit court of Kanawha, whereby it was ordered, that this cause be docketed in that court to be therein proceeded with. The next entry appearing on the records of that court, was entered on June the 8th, 1875, when the cause was continued. The next entry appearing on the record, was made December the 8th, 1875, and was as follows: This day came the parties by their attorneys, and thereupon the demurrer of the defendants to the plaintiff's declaration being argued and considered, was overruled; and then came a jury to-wit: (naming them) who being selected by lot, empaneled and sworn the truth to speak upon the issue joined, and having heard the evidence in part, were adjourned until the next day, until which time the cause was continued."

The cause was in like manner, regularly continued from day to day till the evidence and arguments of counsel were heard in full; and on the 18th day of December the jury were sent out of court to consider of their verdict, and after sometime they returned, and upon their oaths did say, "that they found for the plaintiff the land in the declaration mentioned, which is laid down on the plat of surveyor Chapman made and filed in this cuase and marked " verdict map;" by the letters C. F. G. L. and Q., which land is bounded as follows (giving the boundaries in detail), and they found, that the plaintiffs were entitled to the said land in fee simple; and they also found for the plaintiffs one cent damages/' Whereupon, the defendants moved the court to set aside said verdict, and to award them a new trial, in the premises; and the court took time to consider thereof.

At another day, to-wit, at a circuit court held on the 20th day of December in the year 1875, "came again the parties by their attorneys, and thereupon the motion of the defendants to set aside the verdict of the jury rendered in this cause at a former day of this term, being argued and considered was overruled. Therefore it was considered by the court, that the plaintiff recover against the defendants the possession of the premises described in the verdict aforesaid, and his costs by him about his suit in this behalf expended, including the sum of fifteen dollars allowed by law, and the writ of possession was awarded him." And at another day, to-wit, on the 23d day of December; 1875, "came again the parties by their attorneys, and thereupon the defendants asked the court to sign four bills of exception tendered in this cause; and the court not then having time to examine said bills, execution upon the judgment in this cause was suspended until the adjourned term, or to the next regular term, which ever may first happen, to allow the court to examine said bills."

At the adjourned term of said court on February 3, 1876, after making some modifications in these four bills of excepceptions, the judge signed them; but from delay and inadvertence on the part of the clerk and of the court, no order was entered at this special term showing, that these or any bills of exceptions had ever been signed, sealed qr enrolled. More than two years afterwards, on June 27, 1878, this state of the facts having been proven to the satisfaction of the court, the court on that day, on the motion of the defendant after due notice to the plaintiff, and after reading the affidavits filed by each party, and having listened to the arguments of counsel decided, that "said order filing said bills of exceptions, having been omitted to be entered upon the record through delay and inadvertence of the clerk and of the court, and that said bill of exceptions were duly tendered at the trial term of said cause, and were duly signed and sealed by the court (after some modification by the judge) at the adjourned term of the court, to-wit, on the 3d day of February, 1876, and ordered by the court to be made a part of the record and delivered to the clerk for that purpose, the court therefore did order that said four bills of exceptions numbered one, two, three and four respectively, be filed as of said 3d day of February, 1876, and'made apart of the record of the case."

The defendants G, W. Hill, Wm. Moore and Joel Mullen, obtained from this Court a writ of error and supersedeas to the judgment, rendered against them on December 20, 1875, and presented as the record in said cause what has been above stated, including the affidavits considered by the court on June 27, 1878, and these four bills of exceptions, making a record of more than four hundred printed pages.

Since this was submitted to this Court, it has issued a writ of certiorari to bring up any omitted part of the record; it being supposed that by a clerical mistake the order which showed, that the defendants had filed a demurrer to the plaintiff's declaration and had plead not guilty, as well probably as the order of survey, had not been copied into the record. But the return of the writ of certiorari shows, that the record does not show the filing of any plea or demurrer or that any issue was made in the cause; but a private docket then kept by the judge of the court, as well as the docket kept by the clerk of the court show, the judge's docket being in his own handwriting, that there were orders which should have been entered at the May term 1874, in this cause, which never were entered. The judge on his docket for that term has written in what the clerk certifies is the judge's own handwriting opposite this case on the docket under the heading "Orders made of this term," the words "Plea ord. sur. and cont," And under the same heading opposite this case, the clerk's docket ot that term has these words, "general demurrer, plca not guilty, order of survey and contd."

The clerk certifies, that this is all in the handwriting of the then clerk, except the words " general demurrer," which are in the handwriting of the counsel for the defendant. But instead of the orders being made indicated on these dockets, the only one that was made, was an order of survey made by consent, which order also showed, that George W. Hill, who had not been served appeared and consented with the othfr parties to the making ot this order of survey.

Swann for plaintiffs in error cited the following authorities: 4 Pet. 102, 107; 16 How. 14; 20 How. 221, 252; Powell App. Pro. 1 Cow. 65; Stan. Ky. Dig. pp. 138-9, 684; 11 W. Va. 692; 15 W. Va. 274-5; 9 Cranch. 173; 6 Lans. 15; 25 Barb. 449; Stan. Ky. Dig pp. 157-8-9; Lit. Sel. Cas. 91; 4 Mod. 32; Stan. Ky. Dig. 1061-2; 2 Litt. 160; 8 Leigh 694. 30 Gratt. 419; 16 W. Va. 527; Proctor v. Bill, 10 W. Va 63; Brown v. Gates Treasurer, 15 W. Va. 131; 9 Leigh 437; 1 Rob. 20; 1 II. & M. 497; 6 Fla. 72; 7 Gray 162; 4 McL. 442; 14 Texas 455; 4 Jud. L. P. p. 140; 27 Ga R. 555; 2 How. 263; 8 Pick. 415; 43 N. B. 508; 18 Minn. 188; 25 Con. 337; 1 Gratt. 338; 11 W. Va. 692; 15 W. Va. 74-5; 18 How. 14; 20 How. 221, 252; 9 Ohio St, 526; 1 Conn. 65; 4 Pet. 102; 8 Ohio St. 261.

William H. Hogeman for defendant in error cited the following authorities: 27 Gratt, 534; Acts 1872-3 ch. 206 p. 594; 15 Gratt, 122; 9 Wheat, 657; 6 How. 275; 5 O. St, 56; 1 Otto 250; 6 Ga. 578; 3 A. K. Mar. 360; 4 Bush. 499; 12 Smede & M. Ill; 10 Mo. 156; 17 N. J. L. 291; 22 N. J. L. 699; 26 N J. L. 463; 19 Ohio 426; 6 O. St, 12; 23 Mo. 404; 25 Mo. 327; 3 Sneed (Tenn.) 77; 16 How. 4; 14 W. Va. 157; 1 H. & M. 25; 9 Johns. 78; 3 John. 139; 12 Gratt. 53; 15 W. Va. 323; 13 W. Va 202; 4 Minn. 368; 29 Ver. 198; 5 W. I Va. 540; 8W. Va, 245; 12 W. Va. 209; 15 W. Va.300; 10 Graft. 1; 1 Leigh 216; 12 W. Va. 21; 2 Rob. 676; 15 Gratt, 204; 9 W. Va. 252; 2 Wash. 146; 8 W. Va. 417; 13 Gratt. 480; 4 Dev. & Bat. 164; 1 Dev. & Bat. 76; 6 Litt. (Ivy.) 391; 3 W. Va. 28; 5 W. Va 115.

Green, Judge, announced the opinion of the Court;

The first question to be determined in this case, is what portion of the record, which has been certified by the clerk of the circuit court, really constitutes a part of the record of this case and is to be read and considered by us.

The counsel for the plaintiffs in error insists, that upon the case, as we have stated it, the four bills of exception, which constitute nine-tenths of the...