Schwarzchild & Sulzberger Co v. Chesapeake & O. Ry. Co

• Court: West Virginia Supreme Court
• Writing for the Court: McWHORTER, P
• Citation: Schwarzchild & Sulzberger Co v. Chesapeake & O. Ry. Co, 53 S.E. 785, 59 w. Va. 649 (W. Va. 1906)
• Decision Date: 17 April 1906
• Parties: SCHWARZCHILD & SULZBERGER CO. v. CHESAPEAKE & O. RY. CO.

53 S.E. 785

59 w. Va. 649

SCHWARZCHILD & SULZBERGER CO.

v.CHESAPEAKE & O. RY. CO.

Supreme Court of Appeals of West Virginia.

April 17, 1906.

1. Error, Writ of—Record—Bill of Exceptions.

When, upon the hearing of a case in the appellate court, one of the parties tenders and asks to file in the case, as a part of the record thereof, a paper purporting to be the original bill of exceptions taken in the case on the trial, and it is admitted in open court by the opposing party that it is the paper it purports to be, the court will consider it as a part of the record, in the same manner as if brought up on certiorari.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 2821.]

2. Same—Dismissal.

Upon a motion in the appellate court to dismiss a writ of error as improvidently awarded, upon the ground that "there is, and was, no legal bill of exceptions signed and sealed by the trial judge in said cause." the writ of error will not be dismissed for such reason, where the bill of exceptions as it appears in the record as certified is sufficient on its face.

3. Exceptions, Bill of — Incorporating Evidence—Skeleton Bill.

A case in which the bill of exceptions, as signed by the judge, did not make the evidence taken at the trial a part of the record.

[Ed. Note.—For cases in point, see vol. 21, Cent. Dig. Exceptions, Bill of, § 30.]

(Syllabus by the Court.)

Error from Circuit Court, Greenbrier County.

Action by the Schwarzchild & Sulzberger Company againsttheChesapeake & Ohio Railway Company. Judgment for plaintiff, defendant brings error. Affirmed.

Simnis & Enslow, for plaintiff in error.

Henry Gilmer and T. N. Read, for defendant in error.

McWHORTER, P. Schwarzchild & Sulzberger Company, a corporation, brought its action in the circuit court of Greenbrier county in trespass on the case against the Chesapeake & Ohio Railway Company, for damages sustained by the plaintiff because of the failure of the defendant to promptly furnish cars and transport certain cattle shipped by plaintiff from Ft Springs, W. Va., to Jersey City, N. J., in September and October, 1903. The defendant appeared and demurred to the declaration and each count, which demurrer was overruled. Defendant then entered a plea of not guilty. The issue was tried before a jury, which returned a verdict in favor of the plaintiff, and assessed its damages at $1,840. The defendant moved to set aside the verdict of the jury and grant a new trial, because the verdict was contrary to the law and the evidence in the case, which motion was overruled, to which ruling of the court defendant excepted. The court rendered judgment for said damages so assessed and the costs of the suit. The defendant tendered its bill of exceptions which was signed, sealed, and made a part of the record. The defendant procured from this court a writ of error and supersedeas to said judgment. The plaintiff gave notice to the defendant that it would move this court to dismiss the writ of error and supersedeas as improvidently awarded "because there is, and was, no legal bill of exceptions signed and sealed by the trial judge in said cause." When the case was called for hearing the defendant in error moved to dismiss the writ of error upon the notice given, and the plaintiff in error moved to quash the notice and writ and moved to dismiss said motion. The defendant in error then tendered and asked to file as part of the record in the case the original bill of exceptions. The plaintiff in error admitted in open court that the paper presented was the original bill of exceptions taken by it in the court below, but objected to the filing of it, when the case was fully heard upon said motion and upon the transcript of the record of the judgment and submitted. The record does not disclose any reason given in supportof the demurrer to the declaration, neither is it contended for in the brief of counsel for the plaintiff in error, and an examination of the declaration does not disclose any serious defects in it The demurrer was properly overruled.

The assignments of error as set out in the petition for writ of error relate to the giving of instructions for plaintiff and complained of, which instructions were based upon the evidence given in the case; and another assignment is where it is contended that the court erred in refusing to set aside the verdict and grant the defendant a new trial because the evidence clearly showed that the verdict was wrong. The bill of exceptions, as it appears in the record, is sufficient to bring up all the questions upon the exceptions made by the defendant below, and therefore the appeal cannot be dismissed as improvidently awarded. The original bill of exceptions, as it was signed by the judge of the court below, and which was admitted in open court to be the original bill, is as follows. "Schwarzchild & Sulzberger Co. v. The Chesapeake & Ohio Railway Company, a Corporation. T. O. C. Be it remembered that on the trial of this case, after P. M. Arbuckle had been duly sworn to report the testimony in shorthand to be taken herein, the...