Wickes et al. v. B & O. R. R. Co.

• Decision Date: 16 November 1878
• Citation: 14 W.Va. 157
• Court: West Virginia Supreme Court
• Parties: Wickes et al. v. B & O. R. R. Co.

14 W.Va. 157

Wickes et al.

v.B & O. R. R. Co.

Supreme Court of Appeals of West Virginia.

Decided November 16, 1878.

It must appear from the record, that a point decided by the court during the trial before the jury has been saved before the jury retires; though the bill of exceptions may be prepared, and may be signed by the judge, either during the trial or after it is ended during or before the close of the term at which final judgment was rendered. If this appears from the whole record, or if facts appear in the record, from which it may be fairly inferred or presumed, it is sufficient, though it is not expressly stated in the bill of exceptions; but if it does not so appear substantially from the whole record, the Appellate Court cannot review the judgment of the court upon the point.

If the judge of the court adjourns his court to a future day according to, and by authority of, the sixth section of chapter 15 of the acts of the Legislature of 1872-3, the term of said court, quoad a judgment rendered by said court in a cause before or during the day, on which such adjournment becomes final, is ended. And it is not competent ordinarily, for such court or the judge thereof, thereafter, at the adjourned ternn or any other term, to receive a bill of exceptions and sign it and make it a part of the record in the cause, in" which judgment was so rendered.

If a point has been raised at the proper time, the bill of exceptions as to such point may be tendered to the court at any time during the term, at which the final judgment was rendered.

The mere fact, that a bill of exceptions appears to have been signed by the judge, and is found among the papers of the cause, does not make it a part of the record of the cause. To make such bill of exceptions a part of the record, so that the Appellatte Court may consider it, the record of the proceedings of the court, required to be kept by the 4th section of chapter 9 of the acts of 1872-3, must show substantially, that the bill of exceptions was tendered, "received, signed and directed to be made a part of the record, and should also show, that it was received and signed in the trial of the cause, either before, or during, the term of the court, at which the judgment was rendered.

5. If the judge refuse to sign the bill of exceptions, then the law provides how the signing of the same may be compelled, in a proper case, and the bill of exceptions become a part of the record.

Supersedeas to a judgment of the circuit court of Harrison county, rendered on the 10th day of June, 1876, in an action at law in said court then pending, in which George M. Wickes and Julius C. Wickes were plaintiffs, and the Baltimore & Ohio R. R. Co. was defendant, allowed on the petition of the said defendant.

Hon. Charles S. Lewis, late judgeof the second judicial circuit, rendered the judgment complained of.

The facts of the case are fully stated in the opinion of the court.

C. Boggess, for plaintiff in error, cited the following authorities:

6 Cush. 396; 3 Foster (N. Y.) 237; 3 Ohio St. 187; 7 Gray 95, 96; 24 Md. 118 19; 60 111. 501; 6 Gratt, 481; 11 Gratt. 377; Code, ch. 131, §9; 4 Ohio St. 469; 6 Wheat. 106; 13 Ad & E. (N. S.) 687, 706; 15 Gratt. 122.

John Basset, for defendant in error, cited:

15 Gratt. 64; 9W. Va. 616; 13 Wall. 271; 1 Otto 451.

Haymond, Judge, delivered the opinion of the Court:

This is an action of trespass on the ease, commenced and determined in the circuit court of the county of Harrison. The suit was commenced on the 31st day of March, 1873, and was brought by the plaintiffs to recover damages from the defendant for negligently killing a' horse and destroying a wagon and contents of plaintiffs on the track of said railroad..

On the 26th day of May, 1873, the parties appeared in court; and the defendant demurred generally to the plaintiffs' declaration and to each count thereof; and the plaintiffs joined in the demurrer; and the defendant also pleaded not guilty; and issue was thereon joined.

On the 7th day of June, 1873, the court sustained the demurrer to the first count in the declaration, and overruled the demurrer as to the second count. And thereupon on motion of the plaintiffs leave was given them to amend their declaration in court, which was-accordingly done, and the case was continued until the next term.

At the November term, 1873, of the court it appears, the cause was continued on motion of the defendant and at its costs.

Afterwards at a term of said court held on the 1st day ol June, 1874, the parties appeared in court, by their attorneys; and the defendant, by its attorney, demurred generally to the plaintiffs' amended declaration, and each count thereof; and the plaintiffs joined in the demurrer. The court overruled the demurrer; and thereupon came a jury, who were elected, tried and sworn the truth to speak upon the issue joined. It appears, the jury were regularly adjourned by the court from day to day during the investigation of the case until the 4th day June, 1874, at which time the jury found their verdict in favor of the plaintiffs, and assessed their damages it $435.00, with interest from the 25th clay of January, 1873, making in the aggregate $469.45. Whereupon the defendant moved the court to set aside the verdict of the jury, and grant it a new trial, of which motion the court took time to consider. And afterwards on the 2.3d day of July, 1874, the court sustained the defendant's said motion, and set aside the verdict of the jury, and granted a new trial in the case, and continued it until the next term. After- wards at the December term, 1874, of said court on "motion of the defendant the cause was continued until the next term at defendant's costs. Afterwards on the 3d day of June, 1875, at a term of said court the cause was again continued on motion of the defendant at its costs.

It further appears by the record, that at a term of said court held on the 6th day of June, 1876, the parties again appeared in court, and thereupon a jury came, who being elected, tried and sworn the truth to speak upon the issue joined, were regularly adjourned over from day to day by the court during the trial of the case until the 8th day of June, 1876, at which time the jury found their verdict, and assessed the plaintiffs' damages at $400.00. And thereupon the defendant moved the court to set aside the verdict of the jury and grant a new trial, because, as the defendant alleged, the same was contrary to law and evidence, and because the damages assessed were excessive, of which motion the court took time to consider. And it further appears by the record, that afterwards on the 10th day of June, 1876, the court overruled the defendant's motion for a new trial, and rendered judgment on the last named verdict in favor of the plaintiffs, and against the defendant, for $400.00 the damages assessed, with interest thereon from the 8th day of June, 1876, and the plaintiffs' costs.

It further appears, that afterwards at a circuit court held for the county of Harrison, on the 21st day of July, 1876, this memorandum was entered on the records of the case: "Memo., Be it remembered, that upon the trial of the issue in this cause, the defendant excepted to the rulings and opinions of the court, which was received, signed, sealed, and ordered to be made a part of the record. The bill of exceptions referred to in said memorandum entry is as follows:

"G. M. Wickes, &c, vs. Baltimore & Ohio Raileoad Company. In Case.

"Be it remembered, That upon the trial of the issue in this cause, the plaintiffs, to support and maintain the issue upon their part, after the plaintiffs had closed their evidence in chief, and after the defendant had given evidence tending to show, that the usual signal by blowing the steam whistle had been given of the approaching train, which collided with the plaintiffs wagon and caused the damage complained of, and after evidence had been given by the defendant tending to show, that the plaintiffs, at a safe and convenient distance from said crossing, by listening could have heard the approaching train in time to have avoided, by the use of reasonable and ordinary care, the collision and injury complained of, the plaintiffs introduced a witness, Thomas W. Harrison, who after having stated, that his experience in relation to the crossing in the declaration mentioned was not such, that he was enabled to state, whether an approaching train could have been heard from a point near the crossing, further testified, that he could state what occurred there on one occasion. To the statement of what occured there upon another and different occasion, the defendant objected to the witness speaking in testimony before the jury, but the court overruled the said objection and permitted the witness to state, and he did state, that upon one occasion, when in a carriage with his wife and mother, he was about to cross the track of defendant's road at the crossing aforesaid, and when near thereto he did not hear the approaching train. At the suggestion of his mother and wife, that he should stop his carriage, he did stop, and that as soon as he stopped they heard the train, and it came dashing by veiv rapidly. To this statement of the witness as testimony in the cause the defendant excepted and prayed that this his bill of exceptions be signed, sealed, and made a part of the record of this cause, which is accordingly done.

"C. S. Lewis, [Seal]"

And it appears in the record immediately after said memorandum entry.

But it further appears by the agreement in writing of the parties to this suit, signed by their respective counsel "C. Boggess and John Bassel, and filed in this case in this court by said counsel on the 29th day of August, 1878, and on which the case was then heard, as follows: "1st. That the circuit court of Harrison county commenced its session on the 30th day of May, 1876, and continued to hold the same until the 15th day of June, 1876, on which day the said co...