Shrewsbury v. Absent

• Decision Date: 28 April 1877
• Citation: 10 W.Va. 115
• Court: West Virginia Supreme Court
• Parties: Shrewsbury v. Miller et al. (Absent, Moore,Judge).

10 W.Va. 115

Shrewsbury

v.Miller et al.

Supreme Court of Appeals of West Virginia.

Decided April 28, 1877.

In an action of debt upon a joint bond against eleven persons, as to one the sheriff returns "no inhabitant of my bailiwick," and thereupon the court orders the action to abate as to that defendant; and none of the other defendants object to the abatement, and do not object at any time in the court below; there are two continuances of the cause, one verdict in favor of all the defendants verdict set aside on motion of plaintiff; another trial and verdict and judgment against all said defendants; the said defendants must be held in the appellate court to have waived the error, if any, and it is too late to insist upon it in the appellate court.

An Appellate Court will not reverse the judgment of an inferior court unless error affirmatively appear upon the face of the record, and such error will not be presumed, all the presumptions being in favor of the correctness of the judgment.

It makes no difference upon what ground the court below decided the case, or the particular matter complained of, it is not the reasons assigned upon which the court decided a question that is to be reviewed, but the action of the court itself; and the question always in the appellate court is, whether the judgment to be reviewed is correct.

When a motion is made before a court to set aside a verdict and grant a new trial, and the counsel puts his motion on a particular ground, the court is not confined to the ground upon which the motion is based, but if it sets the verdict aside lor any sufficient reason, there is no error in so doing.

5. Where a new trial is granted in a case appearing clearly within

the jurisdiction of the court, it is not necessary for the court to state in the record the grounds for granting it, as it will be presumed it was correct unless the contrary appears.

6. Where a motion is made to set aside a verdict and for a new

trial on the ground that it is against the evidence, and the motion is either granted or refused; upon a writ of error, in the appellate court, the record must not only sufficiently show the facts proved, or the evidence given to the jury, but it must appear, either expressly or by necessary implication, that it contains all the facts proven or evidence given to the jury at the trial; and such facts or evidence must show error in the judgment of the court below, or such judgment will not be reversed.

The writ of error in this case was allowed upon the petition of the defendants to a judgment of the circuit court of Mason county, rendered against them in a certain action of debt, wherein Columbus Shrewsbury was plaintiff and John W. Miller and others were defendants.

Johnson, Judge, who delivered the opinion of the Court, gives a sufficient statement of the case.

The Hon. Joseph Smith, Judge of the seventh judicial circuit, rendered judgment upon the verdict of the jury at October term, 1873, of the circuit court of Mason county. At the September term, 1872, of said court a verdict of the jury then had in favor of the defendants was set aside by the court, but it does not appear by the record what Judge presided at that term.

Smith and Knight, for plaintiffs in error, relied upon the following authorities:

Humphrey's adm'r v. West's adm'rs, 3 Rand., 516;

Pleasants v. Clements, 2 Leigh, 474; Carr v. Gale, 3 Woodb. & M., 38; Fearnig v. DeWolf, Ibid., 185; Aiken v. Bemes, Ibid., 348; Wetmore v. Murdoch, Ibid., 380;

Wilkerson v. Gurley, Curt., 63; Blogg v. Phoenix Insurance Company, 3 Wash. C. C, 58;. Stanley v. Whipple, 2

McLean, 35; Munford et al. v. Overseers of Poor of Not- toway, 2 Rand., 313, 320; Steptoe v. Reade, 19 Gratt., Urton v. Hunter, Hams & Co., 2 W.-Va., 83; Rohr v. Davis et al., 9 Leigh, 30; Baber v. Cook et al, 1 1 Leigh, 606; Code W. Va., chap. 131, § 9.

John W. English, for plaintiffs in error, cited the following authorities:

Code W. Va., chap. 125, § 8; 2 W. Va. 83; Code W. Va., chap. 131, § 19; 13 Gratt., 650; Ward v. Motter, 2 Rob. (Va.), 564; 5 Rob. Pr., 882; 1 Green. Ev., § 49; Newlin v. Beard, 6 W. Va. 110; Steptoe v. Reade, 19 Gratt., 9; 2 Rand., 320; 11 Leigh, 606; 9 Leigh, 30; 3 Rand., 334; Session Acts 1839, Va., p. 42; Code W. Va., 607, § 52; Blosser v. Harshbarger, 21 Gratt, 214; Campbell v. Lynn & Co., 7 W. Va. 665, 672; 3 Graham & Waterman on New Trials, 339.

W. H. Tomlinson, for plaintiff in error:

25 Eng. C. L. R., 155; 18 Gratt., 817; 4 W. Va. 50; 2 Leigh, 157; King v. Smith et al, 2 Leigh, 479; 2 Wall., 219; 1 Wash., 90; 1 Call., 41; 1 Creen. Ev., §49; 3 Graham & Waterman's New Trials, Ed. 1855, 1267, 1283-4; 2 Rand., 446; 2 Rob. (Va.), 536; 19 Gratt., 10; Creen v. Cole, 2 Saund., 243-254.

S. A. Miller, for defendant in error, referred the Court to the following authorities:

17 Gratt, 434; 6 Gratt, 712; 4 Munf., 492; 1 Graham & Waterman on New Trials, 142; Baldwin, J., in Paterson v. Ford, 2 Gratt, 26; Young el a', v. Black, 7 Cranch., 565; Acts (W. Va.), 1872, ch. 17, §1, clause 8; James River & K. Co. v. Adams, 17 Gratt., 427, especially opinion of Moncure, J., pp. 433, 434; Kate's case, Ibid., 561; 18 Gratt., 214; Moore v. Mississippi, 21 Wall., 636; Adams v. Hubbard, 25 Graft., 129.

STATEMENT OF THE CASE BY THE JUDGE.

This is a writ of error to a judgment of the circuit court of Mason county, rendered on the 6th day of September, 1872, granting a new trial upon the motion of the plaintiff.

Columbus Shrewsbury was, in 1867, the sheriff of Mason county, and on the 9th day of January of that year, appointed John W. Miller, one of the defendants, his deputy, and on the 25th day of February, 1867, the said Miller executed his bond as such deputy, which bond is as follows: $25,000.

Know All Men by These Presents That we, John W. Miller and Thomas A. Johnson, William Morehead, Hugh Parker, Lewis Bails, A. Hess, B. S. Hays, D. C. Forbes, B. R. Burlington, W. W. Harper, C. Stortz, are held and firmly bound unto C. Shrewsbury in the just and full sum of $25,000, in good and lawful money of this State, to be levied respectively of our goods and chattels in default of the underwritten conditions.

The conditions of the above obligation are such, that whereas, C. Shrewsbury, sheriff of Mason county, has appointed said John W. Miller his deputy for said county, now, therefore, if the said John W. Miller shall faithfully perform the duties of said office, then this obligation is to be void, otherwise to remain in full force and virtue.

Witness our hands and seals, this 25th-day of Feb-

ruary, 1867. John W. Miller, [seal.]

Thomas A. Johnson, [seal.]

William Morehead, [seal.]

his

Hugh his X mark Parker, [seal.]

mark

Lewis Bails, [seal.]

Adolph Hess, [seal.]

B. S. Hayes, [seal.]

D. C. Forbes, [seal.]

B. R. BuFEINGTON, [seal.]

William W. Harper, [seal.]

Christian Stortz, [seal.] This bond was acknowledged, by all the parties be-fore a notary.

C. Shrewsbury, on the 27th day of December, 1871, brought an action of debt on this bond i 1 the circuit court of Mason county.

The defendants were all served with process except B. R. Buffi ngton, and as to him the return was " Not found in my bailiwick."

The defendants John W. Miller and W. W. Harper pleaded " covenants performed." The defendant B. S. Hayes filed two special pleas, both of which amount to the plea of non est factum, setting up the circumstances to show why it was not his deed. The defendants Thomas A. Johnson, William Morehead, Hugh Parker, Lewis Bails, B. S. Hayes and D. C. Forbes filed a special plea of the same character, which was the plea of non est factum. And the defendants Thomas A. Johnson, William Morehead, Hugh Parker, Lewis Bails, Adolph Hess, B. S: Hayes, 1). C. Forbes and Christian Stortz filed a plea of non est factum without stating any circumstances. Issue was taken on these several pleas, and the order of the court filing them, concluded thus:

" And the sheriff having made return that the defendant B. R. Buffington was not found, it is ordered that this suit abate as to him."

The cause appeared upon the docket at the June term, 1872, of the Court, and was continued.

At the September Term of the same year the case was tried upon the issues joined, and the order entered on the 6th day of September, 1872, is in these words:" And at another day, to-wit: At a circuit court continued and held for the county of Mason, at the court house thereof, on Friday, the 6th day of September, 1872, this day came again the parties by their attorneys, and the jury sworn for the trial of the issue in this cause, appeared in court pursuant to their adjournment on yesterday, and after having fully heard the arguments of counsel, were sent out to their room to consider of their verdict, re- turned into court, and upon their oaths say they find for he defendants; and thereupon, the plaintiff, by his counsel, moved the court to set aside the said verdict and award him a new trial, because the jury found a verdict generally for all the defendants, when in fact the defendants Miller and Harper had pleaded only the plea of" covenants performed," and there was not sufficient evidence to sustain said plea as to said Miller and Harper, which motion was sustained by the court, and said verdict, set aside and a new trial awarded the plaintiff upon payment of the costs of the present term."

This is all that is shown upon the record as to the motion for a new trial, and it nowhere appears that the defendants or any of them objected to the court setting aside the said verdict, There was no exception taken to the judgment of the court, and no bill of exceptions upon the court setting aside the verdict, signed by the court, and no attempt to have one signed. The next order made in the cause was on the 9th day of April, 1873, in reference to an attachment in the cause. At the same term the cause was continued, upon the defendant's motion. On the 8th day of October, 1873, the defendant, W. W. Harper, filed a plea of non est...