Sponduris v. Rameih
| Decision Date | 01 November 1938 |
| Docket Number | 8748. |
| Citation | 199 S.E. 457,120 W.Va. 536 |
| Parties | SPONDURIS v. RAMEIH. |
| Court | West Virginia Supreme Court |
Submitted October 4, 1938.
Syllabus by the Court.
1. Under Code, 56-7-10, providing for the reference of law actions to commissioners, the testimony taken before a commissioner cannot be excluded in a jury trial for that reason, and, if before the jury, may be considered by it as sufficient to overcome the commissioner's findings to which it relates.
2. A judgment notwithstanding the verdict cannot be based upon the trial court's finding of fact.
Error to Circuit Court, Raleigh County.
Action in assumpsit by Bertha Sponduris against S. M. Rameih. To review a judgment in favor of the plaintiff, the defendant brings error.
Judgment reversed, and judgment entered for defendant.
Ashworth & Sanders, of Beckley, for plaintiff in error.
W. A Thornhill, Jr., of Beckley, and W. W. Goldsmith, of Charleston, for defendant in error.
This is an action in assumpsit brought in the Circuit Court of Raleigh County by Bertha Sponduris against S. M. Rameih. The declaration, which included only the common counts, was filed at September Rules, 1933, the amount sought to be recovered being nineteen hundred sixty-three dollars. An account was filed with the declaration, which, including interest brought the amount alleged to be due the plaintiff to two thousand four hundred thirty-nine dollars and forty-eight cents. On October 12, 1934, an order was entered referring the action to one of the commissioners in chancery for the purpose of having him "take, state and report" an account between the plaintiff and the defendant, the order containing a recital that the matters involved are such that "an account should be stated between the parties." The reference was upon motion of the defendant, the granting of which was resisted by the plaintiff. The commissioner's report was filed October 10, 1935, finding for the plaintiff in the sum of one thousand two hundred twenty-eight dollars and sixty-nine cents, to which finding and report the defendant had, before the commissioner, filed exceptions.
On March 20, 1936, the defendant pleaded non-assumpsit and demanded a jury trial, whereupon the case was presented to the jury and a verdict was rendered, the form of which was that the jury found the defendant "does not owe the plaintiff Bertha Sponduris anything" and the plaintiff "owes the defendant nothing." Based upon these specific findings the general verdict was for the defendant. The plaintiff moved the court to set aside the jury's verdict and award her a new trial. The order shows eighteen specific grounds for the plaintiff's motion.
On October 7, 1937, the court passed upon the plaintiff's motion to set aside the verdict of the jury and found in her favor. Instead, however, of granting the plaintiff's motion to award her a new trial, the court proceeded to confirm the report of the commissioner in chancery and to enter judgment for the plaintiff, based upon the commissioner's report, for the sum of one thousand two hundred twenty-eight dollars. The trial court made its written opinion a part of the record, by which it is disclosed that the trial judge not only, as required by statute, regarded the commissioner's report as being prima facie correct, but concluded that nothing had been brought forth in the testimony to overcome that presumption and that the findings of fact by the commissioner were binding upon the jury when the evidence before it was the same as that before the commissioner. Therefore, supposedly based upon this Court's holding in the case of Kinsey v. Carr, 60 W.Va. 449, 55 S.E. 1004, and Hoover-Dimeling Lumber Company v. Neill, 77 W.Va 470, 87 S.E. 855, 11 A.L.R. 575, the commissioner's report was reinstated and judgment based thereon was entered. This was the course pursued in both of the cases cited by the trial judge in his written opinion, the fundamental distinction, however,...
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