McArter v. Grigsby

| Va. | Dec 1, 1887

Lacy, J.,

delivered the opixiion of the court.

In September, 1882, the plaintiff ixi error instituted axx action of ejectxnexxt against the defendant, ixx the count}' court of Loudouxx county, to recover the tract of land in controversy. At the Apx’il term of said coux't, 1883, the action was tried, axid a verdict rendered for the plaintiff ixx the action for the tx’act of land in controversy. The defendant moved the court to set aside the said verdict, axid grant him a xxew trial. The ground upon which this motion is based, is not stated in the record, bxxt it was overruled by the court, aixd judgment rendered upon the said verdict. Whereupon the defendant excepted, axxd the evidence is certified by the court, but there is xxo certificate that the bill of exceptions contained all the evidexxce; the bill of exceptions setting forth that certain evidexice was offered oxx the part of the plaintiff, and eertaixi other evidexice oxi the part of the defendant. Whereupon the defendant applied for and obtained a writ of error to the circuit court of said county. Upon the hearing in the circuit court the judgment of the county court was reversed, by order entered therein. The plaintiff in error thereupon brought the case here by writ of error. There was no opinion filed by the circuit court, and there is no argument in this court by the counsel for the defendant in error; and tlxe case must be considered here upon the record as inade in the county court. The judgment of that court, must be presumed to be right, unless there be error apparent upon the record, or unless error is made to appear thereto by exception duly taken.

In a case like this, where a jury has heard the evidence and rendered a verdict, it is well settled, says Mr. Barton, (L. Pr. 219,) that the bill of exceptions must state the facts proven, *161and must also state that these are all the facts. If the exceptions be to the refusal to grant a new trial, when the ground of the application is that the verdict is contrary to the evidence, the facts, and all the facts, should be stated in the bill. And yet, in such a case, (especially when the evidence is conflicting,) the cause may be heard in the appellate court upon a bill of exceptions which states the evidence, and not the facts; but then the court will reject all the parol evidence of the exceptant, and give full faith and credit to all the evidence of his adversary, and will not reverse the judgment unless it there appears to be wrong. Id., 220. Judge Tucker says, (2 Tuck. Comm., 293): “As the decision of the court below is presumed to be right, unless the contrary appears, the bill of exceptions should omit nothing which is necessary to show conclusively that it has erred. Where the exception is taken to the opinion of the court refusing a new trial, which was moved for on the ground that the verdict was against evidence, the facts appearing to the court to be proved, and not the evidence of those facts, should be stated. It should, however, appear upon the hill of exceptions that the facts were all that toere proved in the cause.” Id., 294. The whole object of a bill of exceptions is to exhibit upon the record the supposed mistakes of .the court which tries the cause, which otherwise do not appear upon the record, and cannot be brought before an appellate court to be there reviewed, and corrected, if erroneous. 4 Minor’s Inst., 728-9. The appellate court cannot review the action of the lower court in overruling a motion to set aside the verdict, and grant a new trial, unless the ground upon which the motion is based appear, and the error in the court’s action be made manifest by the record, which can only be done by a proper bill of exceptions, setting forth the said error.

Here, we have the motion made and overruled. This may or may not have been erroneous. The bill of exceptions states that the “following was put in evidence by the plaintiff, and *162that the plaintiff proved other stated facts;” and “defendant, in his behalf, offered in evidence;” and that “the defendant introduced a witness, who testified,” etc. This is a certificate of evidence, although, in some respects, it certifies that certain facts are proved. But it does not appear in any way, either by direct statement or any clear inference, that this was all the evidence. If we do not know all the evidence which was offered, nor all the facts proved in the lower court, upon what basis can we rest a judgment that the action of the court was erroneous, or indeed otherwise, when the motion for a new trial was overruled ? We can only say that no error appears in the record; and the action of the court below, upon old and well-established principles, must be presumed to be right. This is the principle upon which the circuit court should have acted, and this is the conclusion which that court ought to have reached upon this record; and it was error in that court to reverse the judgment of the county court aforesaid.

, The judgment of the said circuit court herein will therefore be reversed, and the judgment of the county court affirmed.

Judgment oe circuit court reversed and judgment oe COUNTY COURT AEEIRMED.