12 Gratt. 615 | Va. | 1855
This case is brought here by writ of error to a judgment of the Circuit court of Brooke county, in an action of detinue, wherein Pryor was plaintiff and Kuhn defendant. The specific property sought to be recovered was a large quantity of glass ware; both parties claimed to have acquired title to the ware from Metcalf, Miller & Co. the manufacturers. Pryor claimed under a purchase, which he alleged and attempted to prove was complete, so that nothing further remained to be done by the parties to the sale or either of them, to ascertain the goods bought, the price, or any other element of a complete sale; but that it only remained to deliver the goods in the mode agreed on between the parties. A portion of the goods alleged to have been purchased were retained by Met-calf, Miller & Co. and conveyed and delivered to Kuhn the defendant, as trustee in a deed of trust.
The parties acting under the statute, Code of Virginia, p. 629, § 9, waived a trial by jury, and submitted the case to the court in lieu of a jury. The
No case in this court has gone so far as to hold that the court can or ought to notice a bill of exceptions to the opinion of a court overruling a motion for a new trial, setting out contradictory evidence, for the purpose of determining which side preponderates. In Bennett v. Hardaway, 6 Munf. 125, it was held that the facts of the case, as they appeared in proof, should be set forth in the exception as facts; and in that case the exception was disregarded, because it contained only the evidence, which was conflicting in itself.
In Carrington v. Bennett, 1 Leigh 340, the bill of exceptions set forth the facts, as facts, so far as they were directly proved upon the trial. Those facts, however, did not directly prove the gaming consideration of the
In Ewing v. Ewing, 2 Leigh 337, the bill of exceptions set out all the evidence on both sides in which there was no conflict. It appeared that if all the evidence of the exceptor should be excluded, and the truth of all the evidence on the other side be admitted, still the verdict would not be sustained by proof: And this court thus ascertaining the facts, awarded a new trial. A like rule was observed in the cases of Green v. Ashby, 6 Leigh 135; Rohr v. Davis, 9 Leigh 30; Pasley v. English, 5 Gratt. 141.
In Mays v. Callison, 6 Leigh 230, the question was whether the court below intended to certify the facts, or the evidence merely; and this court being of opinion that the facts had been certified, the exception was held to be well taken.
The rule in Bennett v. Hardaway was adhered to in the cases of Jackson's adm'x v. Henderson, 3 Leigh 196 ; Callaghan v. Kippers, 7 Leigh 608; Forkner v. Stuart, 6 Gratt. 197.
Thus, I conceive the rule declared in Bennett v. Hardaway must govern any case in which it would be required of this court to do more than to draw obvious inferences from proved facts; or in which the exceptor is not prepared to waive his own evidence and rely upon the insufficiency of that given on behalf of his adversary, admitting its truth, to sustain the verdict.
If the case before us be tried by these tests, it will
It has been said, however, that the statute, Code, p. 629, § 9, giving the courts authority to try issues of fact, places them in the position- of courts when trying facts in cases of probat, roads, mills and the like; and that an appellate court may review the decision of an inferior court in such cases upon a certificate of evidence only, even if contradictory; and that this case, like others of the class to which it is alleged to belong, may be reviewed here upon a certificate of contradictory evidence. If it be conceded that a difference is permitted in the form and substance of an exception taken in a case of the class above named, and one taken upon the trial of an issue in a suit, and that this case belongs to the class of probat, &c. yet the result of this case must be the same; for even in cases of that class, the decision of the court below, on conflicting evidence, would be followed by the appellate court, unless error should plainly appear; which cannot be said to exist in this case.
I am of opinion, however, that the legislature, when it authorized a court in place of a jury, to try issues of fact, did not intend to change the practice beyond that precise point, and especially did not intend to change the practice in the appellate courts. The terms of the statute do not require such change; no reason occurs to my mind why it should be made; on the contrary, I perceive very good reason why an inferior court trying issues of fact, should be held to greater strictness in certifying facts proved to its own satisfaction, than in case of a trial by jury. Such court knows with absolute certainty the facts which
The judgment of a court of original jurisdiction, in any case, is pronounced upon a state of facts ascertained upon the trial of such case. It is the duty of an appellate court, in reviewing the judgment of the inferior court, to regard such judgment in reference to the facts upon which it was founded in the opinion of the inferior court. If, however, the appellate ■ court should be required to engage in a new investigation of the facts, it might arrive at a result different from that of the inferior court; and that a judgment of the inferior court, perfectly correct on the facts as they appeared to that court, might be reversed only because the appellate court found a different state of facts. Thus it would result that the appellate court must finally pass upon questions of fact, and this with means far inferior to those of the court which heard the witnesses, and which had other means of deciding which are denied to the appellate court. The legislature, I conceive, could not have intended to impose upon this court the duty of revising the action of the Circuit court in regard to questions which the Circuit court had better means of deciding correctly than those which are allowed to this court.
I am of opinion to affirm the judgment.
The certificate in this case is of the evidence introduced, and not of the facts proved on the trial; and would therefore be insufficient to enable this court to revise the judgment, if the case had been tried by a jury.
But the parties, by consent entered of record, having waived the right to have a jury; thereupon the whole matter of law and fact was heard and determined, and judgment given by the court, in pursuance of the Code, ch. 162, ^ 9, p. 629.
In jury cases, the provinces of the court and jury are distinct. A line of separation is drawn between the law and fact; one side of which belongs to the court, and the other to the jury. Neither can cross the line and invade the province of the other. The jury must receive the law from the court, and the court must render judgment on the facts as found by the jury. The court, under certain limitations, may grant a new trial; but that is the utmost extent to which it can interfere with the verdict. It cannot render a different judgment on the facts, but must ultimately render judgment on the verdict of the jury upon them. An appellate court in this state, contrary to the practice which generally exists elsewhere, will revise the judgment of an inferior court on a motion for a new trial; but it must generally have 'the facts before it, and not the evidence only. It will not weigh evidence and ascertain facts; but will only apply the law to facts already ascertained. It therefore generally declines to act in such cases upon a mere certificate of evidence. To the judgment of a court in a jury case a writ of error lies only upon matter of law.
But to the judgment of a court which tries the whole case, including law and fact, a writ of error lies as well upon the fact as upon the law. All judgments of inferior courts, except when the matter in controversy is merely pecuniary and of small value, may be revised by an appellate court upon an appeal or writ of error. The appeal or writ of error is to the whole
I presume there can be no doubt but that in ordinary cases, triable by the court both upon the law and facts, the judgment of the court may be revised by an appellate court upon a bill of exceptions setting out the evidence at large. The only question then, is, whether this case stands on the same footing in that respect with ordinary cases ? I think it does. The only reason for a contrary opinion seems to be that by the provision in the Code, ch. 162, § 9, p. 629, under which this case arose, the whole matter of law and fact is referred to the court only in cases in which the parties or their counsel, by consent, entered of record,
I think the legislature designed to place these cases on the same footing with other cases in which the whole matter of law and fact is heard and determined by the court; and to subject the judgment of the court, both upon the law and fact, to the supervision of an appellate tribunal. This was certainly the design of the revisors, as will appear from a note to their report, p. 816; in which they refer to the case of a will offered for pro bat; and to all cases of motion in which the whole case of law and fact may be, and generally
I have expressed my views of this case at -length, because it is a case of first impression, and of great importance. In the result, I concur with the rest of the court. There.is a conflict in the testimony. If so much of the plaintiff’s evidence as is in conflict with that of the defendant be rejected, the plaintiff is not entitled to recover. Th.e court below decided in favor of the defendant. And the judgment must, I think, be affirmed, upon any principle that can be applied to the case. If the rule which governs demurrers to evidence be applicable, then the' testimony of the plaintiff which conflicts with the defendant’s must be rejected.’ If the rule which governs this court in the revision of a case of probat be, as I think it is, applicable, then, there being a conflict of testimony, this court will presume that the court below, which saw and heard the witnesses examined, decided correctly. In either view, the judgment must be affirmed. That the conflict does not necessarily involve the veracity of the witnesses, but may proceed from defect of recollection, does not, I think, affect the
The other judges concurred in the opinion of Samuels, J.
Judgment affirmed.