68 W. Va. 10 | W. Va. | 1910
This case is not worthy of an extended written opinion. The judgment sought to be reversed is legally warranted and is a just one under the pertinent facts and circumstances presented.
The judgment is the result of a trial by the court in lieu of a jury. Yet it is insistently assigned as error that the court heard improper and inadmissible evidence. We can not reverse on that ground, if there is nevertheless proper evidence 1o- support the judgment rendered on a trial by the court without a jury. This holding has been iterated and reiterated. Some of the cases are: Nutter v. Sydenstricker, 11 W. Va. 535; State v. Seabright, 15 W. Va. 590; State v. Denoon, 34 W. Va. 139; Wells Stone Mercantile Co. v. Truax, 44 W. Va. 531.
Then another settled rule is evidently overlooked. It is complained that the court erred in refusing to sustain a motion to 'exclude- all the evidence introduced by the plaintiffs when they rested their case. If the court did so err, the defendant can not now take advantage of the fact, for it waived the point by introducing its evidence in the case after ¿he overruling of the motion to exclude. Core v. Railroad Co., 38 W. Va. 456; Trump v. Tidewater Coal & Coke Co., 46 W. Va. 238; and other cases.
The court took under advisement until the next term the motion of defendant to exclude the evidence offered by plain
The declaration set up a good cause of action. The gist of it was that the defendant had assumed to pay certain coal mining royalties due plaintiffs under a lease madé by them to E. E. White, and that the same were due and unpaid. Defendant resisted the action on the ground that White had agreed to assign the lease to it, but had not done so. That defense could not avail in view of the evidence which clearly showed that the lease was within the ownership and control of defendant. It was proved that defendant was indeed in possession of the property under the lease, by and through the Beckley Coal and Coke Company, in'pursuance of the identical contract by which defendant assumed to pay the royalties.
An affirmance of the judgment will be ordered.
Affirmed.