Smith v. Holloway Const. Co., 15158

Citation289 S.E.2d 230,169 W.Va. 722
Decision Date26 March 1982
Docket NumberNo. 15158,15158
PartiesEugean SMITH, et al. v. HOLLOWAY CONSTRUCTION CO.
CourtSupreme Court of West Virginia

Syllabus by the Court

"Where objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered upon appeal." Syllabus point 7, Wheeling Dollar Savings and Trust v. Leedy, W.Va., 216 S.E.2d 560 (1975).

Masters & Taylor and Barbara J. Keefer, Charleston, for appellants.

Jackson, Kelly, Holt & O'Farrell and Stephen R. Crislip, Charleston, for appellee.

PER CURIAM:

This is an appeal by the appellants, Mr. and Mrs. Eugean Smith, from a judgment of the Circuit Court of Kanawha County in their action against the appellee, Holloway Construction Company, for damages allegedly caused their house by the Company's blasting. In the course of the trial, the company made a motion in limine to exclude from the jury's consideration evidence of damages the blasting allegedly caused other buildings in the area. The trial court granted the motion. Even though the appellants did not object, they contend that the granting of the motion constituted error. After examining the record, we conclude that the appellants did not preserve the point for appellate review and we affirm.

This case arises out of blasting conducted by the appellee while building an interstate highway. In the course of blasting, cracks appeared in the foundation and walls of the appellants' home. After the appearance of the cracks, the appellants filed suit against the company for damages. At a pretrial conference, conducted on April 1, 1980, the company made a motion in limine to prevent the appellants from offering evidence of damages allegedly caused other structures by the appellee's blasting. The trial court did not rule upon the motion at that time. The company renewed its motion in limine just prior to trial and the judge granted it. The appellants did not object to the lower court's ruling. The appellants contend here that, by its very nature, a motion in limine does not require an objection to preserve it as error for appeal.

Our general rule regarding the necessity to object to preserve error for appeal is set forth in Syllabus Point 7 of Wheeling Dollar Savings and Trust v. Leedy, W.Va., 216 S.E.2d 560 (1975) as follows:

"[w]here objections were not shown to have been made in the trial court, and the matters concerned were not...

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8 cases
  • Pack v. Van Meter
    • United States
    • West Virginia Supreme Court
    • 29 Octubre 1986
    ...e.g., Johnson v. State Dept. of Motor Vehicles, 173 W.Va. 565, 318 S.E.2d 616 (1984) (per curiam); Smith v. Holloway Construction Co., 169 W.Va. 722, 289 S.E.2d 230 (1982) (per curiam); Loar v. Massey, 164 W.Va. 155, 261 S.E.2d 83 (1979). However, because this issue may arise again in the n......
  • In re In re D.S.
    • United States
    • West Virginia Supreme Court
    • 25 Abril 2014
    ...such, the matter was not jurisdictional and, in the absence of an objection, was not preserved for appeal.” Smith v. Holloway Constr. Co., 169 W.Va. 722–23, 289 S.E.2d 230–31 (1982); see also Coleman v. Sopher, 201 W.Va. 588, 601, 499 S.E.2d 592, 605 (1997) (discussing failure to preserve a......
  • Kobashigawa v. Silva
    • United States
    • Hawaii Supreme Court
    • 26 Abril 2013
    ...v. McCardell, 369 S.W.2d 331, 335 (Tex.1963); Zehner v. Post Oak Oil Co., 640 P.2d 991, 995 (Okla.App.1981); Smith v. Holloway Constr. Co., 169 W.Va. 722, 289 S.E.2d 230, 231 (1982); Maricle v. Spiegel, 213 Neb. 223, 329 N.W.2d 80, 84–85 (1983) (citing Twyford v. Weber, 220 N.W.2d 919 (Iowa......
  • Wimer v. Hinkle, 18258
    • United States
    • West Virginia Supreme Court
    • 13 Marzo 1989
    ...limine as a means of acquainting the trial court with specific evidentiary issues that may occur at trial. See Smith v. Holloway Constr. Co., 169 W.Va. 722, 289 S.E.2d 230 (1982); State v. Ferguson, 165 W.Va. 529, 270 S.E.2d 166 (1980). Such a procedure enables the trial court judge to beco......
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