The State Of West Va. v. Gas, (No. 9988)

• Decision Date: 25 November 1947
• Docket Number: (No. 9988)
• Citation: 130 W.Va. 755
• Court: West Virginia Supreme Court
• Parties: The State of West Virginia, by TheState Road Commission of West Virginia, etc. v. Consumers' Gas and Oil Company, et al.

130 W.Va. 755

The State of West Virginia, by TheState Road Commission of West Virginia, etc.

v.Consumers' Gas and Oil Company, et al.

(No. 9988)

Supreme Court of Appeals of West Virginia.

Submitted November 4, 1947.

Decided November 25, 1947.

Bills of Exception

An order of a trial court, in a law action, based upon the motion of an aggrieved litigant, for a stay of the execution of a judgment against him, which motion is sustained, and such stay granted, "in order that petitioner [litigant] may perfect its appeal," will not be construed as extending the time within which such litigant may secure the signing of a bill of exceptions, or, in lieu thereof, a certificate of the evidence, under the provisions of Code, 56-6-35, 36.

Error to Circuit Court, Ohio County.

Action by the State, by the State Road Commission, etc., against Consumers' Gas & Oil Company and others for the condemnation of land for highway purposes. To review a judgment fixing the amount of compensation to which named defendant was entitled, the State brings error.

Dismissed.

Kenna, Judge, concurring.

Ira J. Partlow, Attorney General, and W. J. Postlethwait, for plaintiff in error.

McGinley, Paull & Petroplus, for defendants in error.

Fox, President:

The State of West Virginia, by its Road Commission, instituted in the Circuit Court of Ohio County, a proceeding to condemn land for highway purposes. The usual proceedings were taken in the case; the property sought to be condemned held to be necessary for public use in highway construction; commissioners were appointed to go upon the land proposed to be taken, and to find the value thereof; followed by their report, to which excep- tions were taken by defendant owner, Consumers' Gas and Oil Company, as well as by the State, and a jury trial had on the question of compensation, resulting in a verdict returned on the 30th day of October, 1946, fixing such compensation in the sum of $12,500.00.

The petitioner, The State of West Virginia, moved to set aside the verdict, so returned and to grant to it a new trial, assigning grounds therefor; and on January 6, 1947, the said motion was overruled, to which ruling the petitioner objected and excepted at the time, and such objection and exception noted in the order entered on that day. Judgment in favor of the defendant, Consumers' Gas and Oil Company, was entered on the verdict aforesaid, and there was not, at that time, any motion for a stay of execution of such judgment, as might have been made under the provisions of Code, 58-5-5; nor was any request made at that time, or any time thereafter, for an extension of the sixty-day period provided by Code, 56-6-35, 36, within which a bill of exceptions, or, in lieu thereof, a certificate of evidence, could be signed by the trial judge. The term at which the judgment order was entered adjourned on January 11, 1947.

On January 28, 1947, petitioner appeared, and, in effect, announced its intention of applying to this Court for a writ of error and supersedeas to the judgment aforesaid and then moved the court to "grant a stay of execution of the judgment herein for a period of sixty (60) days, in order that it may perfect its appeal"; whereupon the court sustained said motion in the following language: "It appearing to the court that petitioner has given notice of its intention to make such appeal. It is hereby ordered that the execution of the judgment herein be stayed for a period of sixty (60) days herefrom, in order that petitioner may perfect its appeal."

On March 25, 1947, and within sixty days from the entry of the order of January 28, 1947, petitioner again appeared in court and moved for a further stay of sixty days, which motion was granted, the court directing: "It is, therefore, ordered and decreed that the stay of execution of judgment herein be extended for a further period of sixty (60) days from this date."

Again, on May 23, 1947, and within sixty days from the date of the last-mentioned order, petitioner appeared in court and moved that a further stay of sixty days be granted, which motion the court sustained and directed: "It is, therefore, ordered and decreed that the stay of execution of judgment herein be extended for a further period of sixty days from this date."

On July 22, 1947, and within the sixty-day period following the entry of the order of May 23, 1947, the petitioner presented to a Judge of the Circuit Court of Ohio County a certificate, in lieu of a bill of exceptions, certifying all the evidence offered and given upon the trial of the case, together with the objections and exceptions noted during the trial, and the instructions given, refused and withdrawn, and asked that the same be signed, sealed and made a part of the record, which was done, and on the record thus made, an application for a writ of error and supersedeas was made to this Court on the 7th day of August, 1947, and which we granted on September 8, following.

On October 14, 1947, the defendant, Consumers' Gas and Oil Company., moved this Court to dismiss the said writ of error and supersedeas, as improvidently awarded, on the ground that the certificate of the evidence, signed as aforesaid on July 22, 1947, was invalid and void, because the same was not signed within sixty days after the adjournment of the term of court at which the judgment in favor of defendant was entered.

This motion presents a single question: Whether the order entered by the trial court on January 28, 1947, ordering "that the execution of the judgment herein be stayed for a period of sixty (60) days herefrom, in order that petitioner may perfect its appeal," amounted to an extension of the time within which the petitioner might secure the signing of a bill of exceptions, or, in lieu thereof, a certificate of the evidence, in the case. It is obvious that without this order, the time within which the trial court could legally sign a bill of exceptions, or a certificate of the evidence, expired on the 13th day of March, 1947, under the provisions of Code, 56-6-35, 36. There is no limitation of time covering the stay or suspension of the execution of a judgment which the trial court may give, except that it must be within a reasonable time. Code, 58-5-5. If, however, by the order of the 28th day of January, 1947, the execution of the judgment of January 6, 1947, was stayed for a period of sixty days thereafter, and such suspension carried on for consecutive sixty-day periods, by the orders of March 25, 1947, and May 23, 1947, and such original order, so supplemented and continued in force by the two subsequent orders, was broad enough to include an extension of the time for the preparation of bills of exception, the final order of the trial court on July 22, 1947, was justified, and the certificate in lieu of the bill of exceptions was legally signed.

In our opinion, such a construction cannot be given to the order of January 28, 1947. That order, and the two orders which followed, plainly stayed the execution of the judgment of January 6, 1947, and nothing more. The securing of a suspension or a stay of the execution of judgment, is separate and distinct from the statutory right of a litigant to time within which to prepare bills of exceptions. The time to prepare a bill of exceptions has been fixed by the statute at sixty days, with the right to have that time extended for such period as the court may, in its discretion, deem justified, so long as such discretion is not abused. In former years, a bill of exceptions was required to be signed within the term of court at which the judgment was entered. Later, litigants were, by statute, given thirty days from the adjournment of the court at which the judgment was entered, in which they might secure the signing of a...