24 W. Va. 551 | W. Va. | 1884
The counsel for defendant in error insists, that, as there was no exception to the judgment, this Court cannot consider whether or not the judgment is sustained by the evidence.
It is claimed that notice to Parsons of the order requiring him to pay the school money in his hands to his successor was not proved. Where a case is tried before a court in lieu of a jury, and the whole evidence is spread upon the record, the appellate court must regard the case as upon a demurrer to evidence, considering the plaintiff in error as the demur-rant. (Claflin v. Steenbock, 18 Gratt. 842.) The evidence is all certified in this case, and applying the rule of a demurrer to evidence, in which the court could draw all the inference from the evidence 'which a jury could, and excluding all the -evidence in conflict with that of the demurrer, the court had the right to infer, that Parsons received the notice of the order made by the board by a copy thereof sent to him by the secretary through the postoffice three or four days after it was made, because it is proved that this copy was mailed to him, and that a short time after the order was passed the president of the board met Parsons, who asked him “what they meant by that order,” and the witness told him he supposed they meant for him to pay over the money, and Parsons replied “he would pay it when he pleased.”
This is the only objection relied upon as to the failure of proof, except that the bond was improperly admitted. If that was not properly in evidence, then of course the proof failed. The bond was properly admitted. There may have been a good excuse for the omission to offer the bond before
The other questions raised by the assignment of error were all considered on the former writ of error and cannot again be reviewed. (Henry v. Davis, 13 W. Va. 230; Mason v. Bridge Co., 20 W. Va. 223).
There is no error in the judgment;. and it is affirmed with costs and damages.
AFFIRMED.