DENNIS BOGGS v. WILLIAM O. SETTLE, JR., et al.
(No. 12329)
Supreme Court of Appeals of West Virginia
Decided November 23, 1965.
Submitted Rehearing September 29, 1965.
Submitted February 16, 1965.
Steptoe & Johnson, Edward W. Eardley, Carl F. Stuckey, Simpson & Baughan, Spencer P. Simpson, Kay, Casto & Chaney, Edward H. Tiley, Hoyt N. Wheeler, for appellants.
Larry W. Andrews, Rudolph L. DiTrapano, William E. Hamb, for appellee.
CALHOUN, JUDGE:
This case is before the Court on appeal from an order entered on January 8, 1964, by the Circuit Court of Kanawha County, sitting as an intermediate appellate court, by which order the circuit court refused to grant an appeal from a final judgment of the Court of Common Pleas of Kanawha County embodied in an order entered on August 27, 1963.
The appeal was refused by the circuit court on the ground that the judgment appealed from was plainly right. In so doing, the circuit court held that the court of common pleas correctly and properly held that it had no jurisdiction to consider a motion to set aside a verdict and judgment in favor of the plaintiff and to grant the defendants a new trial, because of the failure of the defendants to comply with the provisions of
On June 19, 1962, the plaintiff, Dennis Boggs, sustained a personal injury resulting from the falling of a large piece of slate from the roof of the coal mine in which he was then employed. He was transported in a coal car from the place where the accident occurred to the mouth or entrance of the mine. He was then placed in an ambulance to be transported to a hospital in Charleston. The ambulance was owned by defendants Joseph W. Knight and William Ray Young, who were doing business under the name of Knight and Young Funeral Home. While the ambulance was being driven by defendant William O. Settle, Jr., on U. S. Route 119 in Kanawha County, it became involved in a collision with a dump truck owned by defendant Charles O. Moles while it was being driven by his son, the defendant Charles David Moles.
An action was instituted by Dennis Boggs in the court of common pleas against William O. Settle, Jr., Joseph W. Knight and William Ray Young, doing business as Knight and Young Funeral Home, Charles David Moles and Charles O. Moles, by which action the plaintiff sought to recover damages in the sum of $250,000 from the defendants for the personal injuries sustained by the plaintiff as a result of the collision of the two motor vehicles. In the trial of the action, the jury returned a verdict on January 10, 1963, in favor of thе plaintiff in the sum of $100,000 against all of the defendants and, on January 11, 1963, judgment was entered on the verdict.
By an order entered in the court of common pleas on January 18, 1963, the defendants filed and made a part of the record their joint and several motion to set aside the verdict of the jury and the judgment entered thereon and to grant the defendants a new trial. The court of common pleas, by order entered on August 27, 1963, refused to consider the motion on the ground that it had lost jurisdiction to do so for reasons set forth in the court“s written opinion dated August 3, 1963, which opinion was, by the court order, made a part of the record. The Court is authorized to consider the opinion in these circumstances in order to determine the reason assigned by the court for its action in refusing to consider the motion. Rollins v. Daraban, 145 W. Va. 178, pt. 2 syl., 113 S. E. 2d 369. The brief written opinion of the trial court states that “the Court is of the opinion that defendants failed to comply with the provisions of
Neither the court of common pleas nor the circuit court passed upon the assignments of error contained in the defendants” joint and several motion to set aside the verdict and judgment and to grant the defendants a new trial.
After the case was submitted for decision, this Court on March 23, 1965, announced an opinion by which the judgment of the circuit court was affirmed. Judge Berry filed a dissenting opinion and Judge Browning filed a concurring opinion. The Court“s opinion, followed by the dissent and the concurrence, is reported in 141 S. E. 2d 48. On July 14, 1965, the Court granted a rehearing on the petition of the defendants. On September 28, 1965, the case was again submitted for decision upon briefs and oral argument, pursuant to the rehearing previously granted. In the light of the rehearing, the former opinion of the Court, reported in 141 S. E. 2d 48, is recalled and is superseded by this opinion.
A proper decision of the case involves, in the main, certain pertinent provisions of the West Virginia Rules of Civil Procedure.
The provisions of
On June 3, 1963, counsel for the plaintiff orally objected in open court to the trial court“s consideration of the motion for a new trial on the ground that the motion “did not comply with the Rules of Civil Procedure.” On the next day, Spencer P. Simpson, one оf counsel for the defendants, presented in the office of the clerk of the trial court his certificate or return of service which states that, on January 19, 1963, he served the motion for a new trial on the plaintiff by mailing a copy of it to Larry W. Andrews, one of counsel for the plaintiff; and he then and there requested that his certificate of service be filed by the clerk and that it be appended to the motion for a new trial which previously had been filed by court order. The clerk declined to file the certificate or to append it to the motion, but merely marked it as having been “lodged” in his officе. We are of the opinion that the rights of the defendants cannot be affected or prejudiced by the mere action or inaction of the clerk in this respect. Dwight v. Hazlett et al., 107 W. Va. 192, pt. 1 syl., 147 S. E. 877, 66 A. L. R. 102; Forest Glen Land Co. v. George, 96 W. Va. 209, 212, 122 S. E. 543, 544; Darnell v. Flynn et al., 69 W. Va. 146, pt. 5 syl., 71 S. E. 16.
As we have stated previously, the defendants” joint and several motion for a new trial was filed by court order on January 18, 1963.
The very brief opinion of the trial judge, in the form of a letter directed to counsеl of record in the case, merely stated that his court had lost jurisdiction to entertain the motion for a new trial because of the failure of the defendants to comply with the provisions of
There is no way we can determine, with any appreciable degree of certainty, upon what the trial court“s finding of fact in this case was based. Normally, in a case coming to this Court on appeal, the evidence is made a part of the record by a method prescribed by law. In such a situation, we are enabled to determine with certаinty the proof upon which any finding of fact in the trial court was based and in such circumstances we are enabled to determine from the record whether the finding of fact was justified by the proof. In such a case, we can determine whether the finding of fact was based upon improper evidence, in whole or in part, or whether the finding was without legal evidence for its support. At the time the trial court made its ruling, no testimony or other statements under oath were before the court on the question whether the motion for a new trial, as a factual matter, had been served pursuant to the requirements of
It appears, inferentially at least, that the trial court“s factual determination was made, in whole or in part, upon oral statements made by counsel in open court, addressed in some instances to the court and in other instances to opposing counsel. While at least somе of such oral statements of counsel are before us as a part of the court reporter“s transcript of the trial court proceedings, it appears that counsel for the parties appeared before the trial court
This Court, in innumerable cases, has been called upon to appraise findings of fact, including findings made by juries, by trial chancellors and by judges of trial courts sitting in lieu of juries. We are not aware of any such case, and our attention has not been directed to any such case, in which the finding of fact was made in the absence of that which is regarded in law as competent proof or evidence.
While courts are permitted to take judicial notice of certain facts, it is well settled that a trial judge is not permitted to base a finding upon facts which are merely mattеrs of his personal knowledge as distinguished from proof of such facts. “It is a well-entrenched part of the judicial system that the judge sees only with judicial eyes and knows nothing respecting any particular case of which he is not informed judicially.” 20 Am. Jur., Evidence, Section 16, page 46. “Judicial knowledge is limited to what a judge may properly know in his judicial capacity and he is not authorized to make his individual knowledge of a fact not generally or professionally known the basis of his action.” 31 C. J. S., Evidence, Section 11, page 832. See also 23 C. J., Evidence, Section 5, pages 61-62. The individual and extrajudicial knowledge on the рart of a judge will not dispense with proof of facts not judicially cognizable, and cannot be resorted to for the purpose of supplementing the record. Newton et al. v. Newton, 202 Va. 96, 116 S. E. 2d 94; Young v. Commonwealth, 194 Va. 780, 75 S. E. 2d 479; Darnell v. Barker, 179 Va. 86, 18 S. E. 2d 271. “If the judge, as a man and an observer, has any personal knowledge, he may (and sometimes morally must) utilize it by taking the stand as a witness and telling in that capacity what he knows * * *; this solves the dilemma without either injuring justice or violating principle.” Wigmore on
By the provisions of
For reasons stated in this opinion, the judgment of the Circuit Court of Kanawha County dated January 8, 1964, affirming the judgment of the Court of Common Pleas of Kanawha County dated August 27, 1963, is reversed and the case is remanded to the court of common pleas with direction to act upon the defendants” joint and several motion for a new trial and to conduct such further proceedings in the case, consistent with the legal principles stated in this opinion, as may be proper.
Reversed and remanded with directions.
I respectfully but firmly disagree with the majority of this Court, believing that the majority has unnecessarily complicated a simple issue. The pertinent rules,
In view of the fact that the pertinent rules wеre not complied with as a matter of law, I would not reach the factual issue of whether, within ten days after entry of judgment, one of the attorneys for the defendants served one of the attorneys for the plaintiff with a motion for a new trial, by mail. However, I shall briefly comment upon certain statements contained in the majority opinion lest by silence I might now or hereafter be accused of giving my consent to, or approval of, those statements.
I do not believe the criticism of the able and highly respected trial judge to the effect that “it is most unfortunate and regrettable that the trial judge did not statе more specifically either in his letter opinion or in a court order, in what respect, in his judgment, the defendants
There can be no criticism of the four points of the syllabus as statements of abstract principles of law but when applied to the facts in this case some, at least, are not applicable. This is the third point of the syllabus: “A certificate of an attorney made pursuant to
While, of course, it cannot be considered here, plaintiff, in answеr to certain affidavits lodged or filed with this Court by the defendants in connection with their application for rehearing, filed the affidavit of the trial judge to the effect that one of counsel for defendants had stated in open court when the question of service of the motion within the ten day period was first raised, that “it was not necessary that a motion for a new trial be served upon opposing counsel and that he did not have to serve plaintiff“s counsel with anything“. This was a factor which, though we may not consider it because it is improperly before us at this time, the trial judge could properly have cоnsidered, the same as he may judge of the demeanor and credibility of a witness in a case tried by him without a jury, and if there is sufficient record evidence to support his finding we will not disturb it even though we do not have before us all of the factors of the case which entered into his decision.
I am of the opinion, as three other members of this Court were initially, that there was evidence before the trial judge which, in my opinion, was sufficient to support his holding that the ten day statutory period for giving notice of his request for a new trial was not complied with. The record shows that this matter was discussed with the trial court and that these statements were made which he could consider in arriving at his decision: the final order in this case was entered on January 11, 1963, and the motion to set aside the judgment was filed in the clerk“s office on January 18; on June 24, 1963, three attorneys for the plaintiff and three for the defendants appeared before the trial judge and the court reporter“s record of the proceedings appear on page 613 of the record as follows: One of counsel for the plaintiff stated that “... we feel that the Court can not properly consider their motion for a new trial because of their failure to comply with
It is my opinion that a factual question under these circumstances was presented for determination by the trial
Upon the rehearing of this case, counsel for the defendants requested that this case be remanded to the trial court for the purpose of taking evidence upon the crucial issue of jurisdiction and cited many cases that they considered applicable decided by this Court in which such remand had been ordered. It is my opinion that, assuming that the majority of the Court was correct in finding that jurisdiction was a question of fact and that there is insufficient evidence to support the trial court“s finding that it wаs without jurisdiction, there should have been a remand so that the trial judge and counsel for the plaintiff and the defendants might, under oath, give their respective versions of what transpired subsequent to January 11, 1963, when final judgment was entered, so that the jurisdictional question might be determined.
In retrospect, I am sure that this severely and permanently injured plaintiff would have difficulty comprehending the vagaries of the judiciary. The trial judge ruled that the defendants were out of court for the reasons heretofore stated and the able and distinguished judge of the intermediate appellate court, the Circuit Court of Kanawha County, affirmed that finding. This Court granted an appeal, heard arguments and read the briefs of the many counsel in this case and solemnly came to a decision for the plaintiff by a four to one majority [the writer would have affirmed as a matter of law] that there was sufficient evidence to support the factual finding that the trial court had no jurisdiction of the motion to set aside the verdict and grant a new trial. A rehearing was requested and granted, the case was again considered and this time, again by a four to one majority, this Court held that there was no evidence upon which the judgment of the trial court could have been entered.
For the reasons hereinbefore stated, I would affirm the ruling of the trial judge and the intermediate appellate judge.