The State v. Seabright.

• Decision Date: 08 November 1879
• Citation: 15 W.Va. 590
• Parties: The State, for use of Crdmbacker v. Seabright.
• Court: West Virginia Supreme Court

15 W.Va. 590

The State, for use of Crdmbacker

v.Seabright.

Supreme Court of Appeals of West Virginia.

Decided November 8, 1879.

1.In a case tried by a court in lieu of a jury it is not error in the the court to hear illegal testimony, the court being fully competent to discard such evidence.

2.Where a plea is so defective as not to raise a substantial defense to the action, the plea is bad, even under the statute of jeofails; and a repleader ought to be awarded by the Appellate Court, though no objection was raised thereto in the court below, and issue had been joined thereon.

3.But where an improper or defective plea raises a substantial defense to the action, and it is unobjected to in the court below, and issue is thereon joined, after verdict or judgment it is too late to object; the defect being cured by the statute of jeofails.

4.Where a declaration on an executorial bond alleges the recovery of a judgment de bonis testatoris against the executor, and an execution issued thereon, with return of nulla bona, the declaration is not supported by the introduction of a judgment against the executor de bonis propriis, and where judgment in such a case is rendered against an obligor in the bond, upon such evidence by the court in lieu of a jury, the Appellate Court will reverse the judgment and dismiss the case without remanding it for a new trial.

Writ of error and supersedeas to a judgment of the municipal court of Wheeling, rendered on the 30th day of May, 1877, in an action of debt in said court then pending, wherein The State of West Virginia for use of William Crumbacker was plaintiff, and Charles W. Seabright was defendant, allowed upon the petition of said

Hon. Gibson L. Cranmer, judge of the municipal court of Wheeling, rendered the judgment complaiued of.

Johnson, Judge, furnishes the following statement of the case:

At rules held in the clerk's office of the municipal court of Wheeling, in April, 1877, the plaintiff filed a declaration against Charles W. Seabright, surviving obligor of himself and Henry Seabright, deceased. The action was brought upon the executorial bond of Charles W. Seabright, executor of the last will and testament of Louis Seabright, deceased, in which declaration the plaintiff alleges the recovery of a judgment de bonis testcdoris for $73.76, together with costs amounting to $31.35, in the name of William Crumbacker against Charles W. Seabright, executor of said Louis Seabright, deceased; an execution on said judgment to be levied on the unadministered goods of said testator in thehands of said executor; and the return of the sheriff, that he could find no such goods, &c. The declaration also alleges that by the settlement of said executor, after the payment of all legacies and debts proved against said estate, there was found a balance due said estate from said executor of $273.66 applicable to the payment of the plaintiff 's claim; and that demand having been made, said executor had refused to pay the same, &c.

The declaration is in the usual form. In May, 1877, the defendant appeared and demurred to the declaration, which demurrer was overruled, and pleaded plene administravit, and " that he was never indebted to the said plaintiff as in said declaration mentioned." The plaintiff took issue on both pleas without in any way objecting to either. The case was submitted by consent to the court in lieu of a jury; and the court found for the plaintiff and gave judgment for $2,000.00, the penalty of the bond, to be discharged by the payment of the amount claimed in the declaration, with the costs of the suit.During the trial the defendant took four bills of exceptions to rulings of the court, which were signed and made part of the record.

The first was to the introduction of the judgment, The second was to the introduction of the execution claimed to have issued on said judgment. The third was to the judgment of the court in refusing to set aside the judgment and grant a new trial. The fourth was to the refusal of the court to set aside the judgment; this bill certifies all the evidence.

The evidence was, first the judgment, which was as follows: "Charles W. Seabright, executor of the will of Louis Seabright v. William Crumbacker, certified to court by B. Kan non, J. P. 'This day came the parties by their attorneys, and the plaintiff's motion, made at a former day of the term, to set aside the verdict obtained against him, and grant him a new trial being argued, the said motion is by the court sustained, unless the defendant remits $39.25, and said defendant now here in open court so remitting, the said motion is overruled. Thereupon it is considered by the court, that the defendant recover of and from the plaintiff $75.76, balance due on verdict with interest thereon from the 29th day of March, 1876, and his costs by him in this behalf expended.' "

The foregoing judgment was rendered by the county court of Ohio county, on the 14th day of April, 1876.

The execution commands the sheriff of Ohio county, "of the goods and chattels in your bailiwick, which were of the estate of Louis Seabright, deceased, at the time of his death, in the hands of Charles W. Seabright, executor thereof, to be administered, you cause to be made the sum of $73.76, with legal interest thereon from April 14 1876, till payment, which William Crumbacker lately in our county court for the county of Ohio has recovered against the said Charles W. Seabright, executor of the said estate as aforesaid, for debt; also the sum of $31.35 which to the said Willaim Crumbacker," &c.

The settlement of the account of said Seabright, executor, showing a balance due the estate or claimed in the declaration, was also in evidence; and the court certifies that this was all the evidence for plaintiff, and there was none for defendant,

To the judgment a writ of error and supersedeas was granted.

Davenport & Dovener, for plaintiff in error, cited the following authorities:

Code p. 628, §20; Id. p. 504, §23; 2 Mat. Dig. 568, n. 27; 3 Leigh 96; 1 Gratt. 229.

D. Peck, for defendant in error, cited Code, ch. 85, §23.

Johnson, Judge, delivered the opinion of the Court:

There being no defect in the declaration pointed out by the plaintiff in error, and none being perceived, I think the demurrer was properly overruled by the court below.

The first and second bills of exceptions show no reason for reversing the judgment. In a case tried by a court in lieu of a jury, it is not error in the court to hear illegal testimony; the court being fully competent to discard such evidence. Natter v. Sydenstricker, 11 W. Va. 535.

The third bill of exceptions need not be considered here, as the subject thereof is embraced in the fourth.

The fourth bill of exceptions is to the judgment, on the ground that it is not warranted by the evidence; and it certifies all the evidence. This bill raises the question, whether the defendant filed any plea which under the evidence thus certified would bar the plaintiff's action. The plea of plene administarvit ...