Ward v. Charlton

• Decision Date: 13 January 1941
• Docket Number: Record No. 2289.
• Citation: 177 Va. 101
• Court: Virginia Supreme Court
• Parties: JAMES R. WARD v. SIDNEY CHARLTON.

Page 101

177 Va. 101

JAMES R. WARD v. SIDNEY CHARLTON.

Record No. 2289.

Supreme Court of Virginia, Richmond.

January 13, 1941.

Present, Holt, Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.

1. APPEAL AND ERROR — Record — Supreme Court of Appeals Limited to Record. — In an appellate proceeding the Supreme Court of Appeals sits to review and to correct errors of inferior tribunals, and in exercising this jurisdiction it is limited to the record and the proceedings which have taken place in the lower court and have been there settled and certified to the Supreme Court of Appeals.

2. APPEAL AND ERROR — Record — Extrinsic Evidence to Contradict or Add to Record. — In reviewing proceedings which have taken place in the lower court and have been there settled and certified to the Supreme Court of Appeals, extrinsic evidence may not be received by the Supreme Court of Appeals to contradict or add to the record.

3. APPEAL AND ERROR — Record — Consideration of Matters Which Have Accurred Since Entry of Judgment. — An appellate court may consider matters which have occurred since the entry of the judgment appealed from to determine whether it will proceed to review the record before it. Of necessity these subsequent proceedings must be shown by extrinsic evidence not found in the record to be reviewed, and in considering such extrinsic evidence and in determining whether it will proceed to a consideration of the proceedings below, the appellate court exercises appellate and not original jurisdiction.

4. APPEAL AND ERROR — Necessity for Real Controversy — Duty of Court to Dismiss if No Actual Controversy Exists. — Whenever it appears or is made to appear that there is no actual controversy between the litigants, or that, if it once existed, it has ceased to do so, it is the duty of every judicial tribunal not to proceed to the formal determination of the apparent controversy, but to dismiss the case.

5. APPEAL AND ERROR — Necessity for Real Controversy — Only Real Controversies and Existing Rights Entitled to Invoke Courts' Powers. — It is not the office of courts to give opinions on abstract propositions of law, or to decide questions upon which no rights depend, and where no relief can be afforded. Only real controversies and existing rights are entitled to invoke the exercise of their powers.

6. APPEAL AND ERROR — Necessity for Real Controversy — Termination of Controversy May Be Shown by Extrinsic Evidence. — On appeal, the termination of the controversy between the litigants may appear from the record under review or from matters of which the Supreme Court of Appeals may take judicial notice, but when such termination of the controversy does not appear in this manner, it may be shown by extrinsic evidence, and, being so shown, the writ of error or appeal will be dismissed.

7. AUTOMOBILES — Appeal and Error — Necessity for Real Controversy — Jurisdiction of Appellate Court to Consider Extrinsic Evidence. — Case at Bar. — In the instant case, an action to recover for personal injuries and damages to plaintiff's automobile received when the automobile collided with the rear of a tractor which was driven by defendant's servant, a verdict for plaintiff was set aside by the trial court, which entered a judgment for defendant. On appeal, defendant in error filed a motion to dismiss the writ of error on the ground that plaintiff in error was estopped to prosecute the writ of error by a final judgment entered subsequent to the granting of the writ by a court of competent jurisdiction and on the identical cause of action. The affidavit in support of the motion showed that in an action by defendant's servant against plaintiff for damages for personal injuries resulting from the collision, plaintiff filed a cross-claim against the servant for personal injuries and damages to his automobile, that the jury rendered a verdict that neither party was entitled to recover of the other, and that the judgment entered on the verdict had become final and could not be appealed from. Plaintiff in error admitted the correctness of the facts stated in the motion, but contended that the Supreme Court of Appeals could only review and correct errors presented by the record of the proceedings in the trial court, and that for it to consider extrinsic evidence of matters which had occurred since the entry of the judgment below was to exercise original and not appellate jurisdiction.

Held: That the Supreme Court of Appeals had the jurisdiction and it was its duty to examine the extrinsic evidence in determining whether it would proceed to hear the pending matter or dismiss it because the issue between the parties had been settled.

8. FORMER ADJUDICATION OR RES ADJUDICATA — Necessity for Pleading — Defense Not Entertained if Made for First Time on Appeal. — An appellate court in reviewing the record of the proceedings in the court below will not entertain the defense of res judicata if it was available and was not made below, because the defense is an affirmative one and if not asserted below is deemed to have been waived.

9. AUTOMOBILES — Res Adjudicata — Necessity for Pleading — Where Defense Could Not Have Been Asserted During Trial — Case at Bar. — In the instant case, an action to recover for personal injuries and damages to plaintiff's automobile received when the automobile collided with the rear of a tractor which was driven by defendant's servant, a verdict for plaintiff was set aside by the trial court, which entered a judgment for defendant. On appeal, defendant in error filed a motion to dismiss the writ of error on the ground that plaintiff in error was estopped to prosecute the writ of error by a final judgment entered subsequent to the granting of the writ by a court of competent jurisdiction and on the identical cause of action. The affidavit in support of the motion showed that in an action by defendant's servant against plaintiff for damages for personal injuries resulting from the collision, plaintiff filed a cross-claim against the servant for personal injuries and damages to his automobile, that the jury rendered a verdict that neither party was entitled to recover of the other, and that the judgment entered on the verdict had become final and could not be appealed from. Plaintiff in error admitted the correctness of the facts stated in the motion but argued that an appellate court in reviewing the record of the proceedings in the court below would not entertain the defense of res judicata if it was available and not made below.

Held: That this principle did not apply to the instant case since the defense was not available and could not have been asserted during the trial below.

10. AUTOMOBILES — Res Judicata — Judgment Entered after Judgment Appealed from — General Rule as to Necessity for Pleading Inapplicable — Case at Bar. — In the instant case, an action to recover for personal injuries and damages to plaintiff's automobile received when the automobile collided with the rear of a tractor which was driven by defendant's servant, a verdict for plaintiff was set aside by the trial court, which entered a judgment for defendant. On appeal, defendant in error filed a motion to dismiss the writ of error on the ground that plaintiff in error was estopped to prosecute the writ of error by a final judgment entered subsequent to the granting of the writ by a court of competent jurisdiction and on the identical cause of action. The affidavit in support of the motion showed that in an action by defendant's servant against plaintiff for damages for personal injuries resulting from the collision, plaintiff filed a cross-claim against the servant for personal injuries and damages to his automobile, that the jury rendered a verdict that neither party was entitled to recover of the other, and that the judgment entered on the verdict had become final and could not be appealed from. Plaintiff in error admitted the correctness of the facts stated in the motion but argued that the defense of res adjudicata could not be availed of because the judgment relied on by way of estoppel was not entered until after the entry of the judgment before the Supreme Court of Appeals for review.

Held: That there was no merit in this contention, since defendant in error was not asserting the defense of estoppel against the judgment which had been entered in the court below.

11. FORMER ADJUDICATION OR RES ADJUDICATA — Basis of Doctrine — Public Policy. — The doctrine of res judicata or estoppel by judgment is based on public policy.

12. FORMER ADJUDICATION OR RES ADJUDICATA — In General — Principle of Doctrine. — The doctrine of res judicata proceeds upon the principle that one person shall not the second time litigate, with the same person or with another so identified in interest with such person that he represents the same legal right, precisely the same question, particular controversy, or issue, which has been necessarily tried and finally determined, upon the merits, by a court of competent jurisdiction, in a judgment in personam in a former suit.

13. FORMER ADJUDICATION OR RES ADJUDICATA — In General — Doctrine Should Be Maintained Where Applicable. — The doctrine of res judicata is firmly established in Virginia jurisprudence and should be maintained where applicable.

14. AUTOMOBILES — Res Adjudicata — Judgment Entered after Judgment Appealed from — Effect in Supreme Court of Appeals — Case at Bar. — In the instant case, an action to recover for personal injuries and damages to plaintiff's automobile received when the automobile collided with the rear of a tractor which was driven by defendant's servant, a verdict for plaintiff was set aside by the trial court, which entered a judgment for defendant. On appeal, defendant in error filed a motion to dismiss the writ of error on the ground that plaintiff in error was estopped to prosecute the writ of error by a final judgment entered subsequent to the granting of the writ by a...