10 W. Va. 115 | W. Va. | 1877
It is contended in the argument here, and for the fii’st
In the case of Bush v. Campbell, 26 Gratt., it was held that where, “ in an action of debt upon a bond against five persons, the plaintiff endorsed on the process ‘not to be served on ‘ G,’ ’ who was one of the five, and he was not brought before the. court, there having been two continuances of the cause and a verdict and judgment against one of the defendants, and he having moved for a new trial and also in arrest of judgment, without at any time objecting to the failure of plaintiff to make ‘ G ’ a party ; and it appearing further from the motion in arrest of judgment that ‘ G’ had absconded and left the State before the suit was brought, ‘ B’ must be held in the appellate court to have waived the objection, and it ivas too late to make it in the appellate court.”
It was held in the case of Hart v. B. & O. R. R. Co., 6 W. Va., 336, that where a plea is filed by defendant without objection, and thereby becomes a part of the record, and afterwards, the court, on motion of the plaintiff, rejects the plea, and the defendant fails to except to the opinion of the court in rejecting the plea, the appellate court must presume that the defendant acquiesced in the decision of the court in rejecting the idea.
But it is insisted that the court erred in setting aside the verdict of the jury rendered on the 6th day of September, 3872. It is argued for the defendant in error that where there is no bill of exceptions taken in the
Totty’s exr. v. Donald & Co., 4 Munf., 430; McMillion v. Dobbins, 9 Leigh, 422; Christie v. B. & O. R. R. Co., 5 W. Va., 325; Tenant’s ex. v. Gray, 5 Munf., 494.
But it may be laid down as a settled principle that an appellate court will not reverse the judgment of an inferior court unless error affirmatively .appear on the face of the record, and such error will not be presumed, all the presumptions being in favor of the correctness of the judgment. Little Miami R. R. Co. v. Collett, 6 Ohio St., 182; The Potomac, 2 Black, 581.
It makes no difference upon what ground the court below decided the cause, or the particular matter complained of, it is not the reason upon which the court decided a question that is to be reviewed by the appellate court, but the action of the court itself, and the question always, in the appellate court is whether the judgment to be reviewed is correct. Davis v. Packard et al., 6 Pet., 41; McClung v. Silliman, 6 Wheat., 603.
Where a new trial is granted in a case appearing clearly within the jurisdiction of the court, it is not necessary for the court to state in the record the grounds for granting it, as it will be presumed it was correct, unless the contrary appears. Hume v. Beall, 3 Munf., 226. Rixey v. Ward, 3 Rand., 52.
In Haris v. Lewis, 5 W. Va., 575, it was held, that,
The case of Callaghan v. Kippers, 7 Leigh, 608, was an action of assumpsit for the price of hogs, alleged to have been sold and delived by the plaintiff to the defendant ; verdict was rendered against- the defendant; the defendant moved the court to set aside the verdict and grant him a new trial, upon the ground he had discovered new testimony, as stated in his own affidavit and the affidavit of one Henry B. Hunter. The motion was overruled and a bill of exceptions was filed containing those two affidavits. In that case Judge Cabell said : “ In the case before us the court to which the motion was addressed heard all the evidence, not only that discovered after the trial, but that which was given to the jury ; and that court decided against the new trial. It may possibly have erred; and if it did err, it is our right and our duty, as an appellate court, to correct the error. . But every judgment- is taken to be correct, until it is shewn to be erroneous. How, then, stands this case ? What is the proof afforded by this record, that the inferior court has erred? It gives us only the newly discovered evidence, which if it was the only evidence in the case, would shew the verdict to be wrong. But other evidence was given to the jury; and that evidence may have justified the verdict even if the newly discovered evidence had also been before the jury. It may have been proved to the perfect satisfaction of the court and jury that Callaghan was'in fact a partner, in which case
It has been held repeatedly, that.if a bill of exceptions is taken to instructions to the jury, and sufficient facts are not set forth to show whether the instructions were relevant or irrelevant, the appellate court will not decide upon the correctness of the instructions, as the presumption, is the court decided correctly in the absence of proof to the contrary. Fitzhugh’s exr. v. Fitzhugh, 11 Gratt., 308; 2 W. Va., 90; Wise v. Postlewaite, et al., 3 W. Va., 452.
And the same strictness is required as to exceptions to the admission of improper evidence upon the trial of a ease. In the case of Carlton, Chamberlain Co. v. Mays & Co., 8 W. Va., 245, it was held, that a party complaining of the admission of improper evidence, must state the facts or the evidence in his bill of exceptions, from which it will appear affirmatively that the evidence is improper.
Where a motion is made to set aside such a verdict and for a new trial on the ground that it is against the evidence, and the motion is either granted or refused upon a writ of error in the appellate court there must not only be a bill of exceptions, stating the facts proved, or the evidence given to the jury, but it must appear either expressly or by necessary implication that the bill of
Eastman v. Wright, 4 Ohio St., 156; Ide v. Churchhill, 14 Ohio St., 372; Russell v. Ely et al., 2 Black, 576; Bank of Valley v. Bank of Berkeley, 3 W. Va., 386.
According to these principles, how stands this case ? The case of Green v. Cole, 2 Saund., 228, relied upon by appellant’s counsel, can have no application here, for the motion in that case was, as the record shewed, on the ground, and the only ground that the error appeared upon the face of the verdict itself. Counsel contend that according to the principles decided in Pleasants v. Clements, 2 Leigh, 474, the court erred in setting aside the verdict. In that case, after the verdict was rendered against. Mrs. Clements, she thereupon filed an affidavit that she had material testimony that she might have introduced, but that she was induced not to summon the witnesses by her counsel, who advised her “that in his opinion it was unnecessary, as well because of the testimony of another witness already taken in the case, as because the matter in controversy had been already determined in the court of chancery, a court of competent jurisdiction, in which the question of fraud had been fairly tried and determined ; that owing to this advice she had been surprised at the trial; and she verily believed that if she could obtain a new trial she would be able to prove by the above persons and others that the slave sold to Pleasants had been and was at the time of the sale as healthy as any man of his age.” “ Upon this affidavit,” says the record, “she moved the court to set aside the judgment entered the day before, and the verdict, and to order a new trial; and the court upon the strength of the affidavit alone, did set aside the judgment and verdict and order a new trial.” The appellate court very properly said this was error. The court below certified that there was no other reason for setting
What motion was sustained by the court? Clearly the motion for a new trial. The court, as we have seen, Aras under no obligations to spread upon the record his reasons for setting aside the verdict; it has certified no reasons. It is argued that it did it for the only reason stated in the motion of counsel; but this view is not sustained by the record. It may be the counsel himself had other reasons, and may have stated them ; the record does not say he stated no other. A court is not confined to the gi’onnd upon which counsel may choose to put a motion for a new trial; it may do so if it chooses, but it Avill not be presumed that it did, and in
I have searched in vain for an authority which holds that in a motion for a new trial, the court is confined to the ground upon which the counsel puts it. It seems to me that such a requirement would be absurd.
It was held in Humphrey’s adm’r v. West’s adm’r, 3 Rand., 516, that a new trial can only be had upon motion ; as the court is not bound ex mero motu to grant a new trial. But when the motion is made of course the court must act upon it, and it is not confined to the grounds of the motion. From the record, as it appears here, we can’t see that the court erred in setting aside the verdict. It may have been that the evidence was wholly insufficient to sustain any of the pleas. It is insisted that the plaintiff’s counsel, in his motion, admitted that the evidence was sufficient to sustain the pleas of non est fuetum. The record does not show such admission, and we cannot draw inferences against the judgment of the court. The plaintiff’s counsel, in his motion, as far as the record discloses, simply said nothing about any of the defendants except Miller and Harper. If he had merely asked to set the verdict aside as to Miller and Harper, and the court had set it aside as to them, and them only, it would ha.ve been a different case. But the motion is to set aside the whole verdict, and the court does it, and it is immaterial in this case upon what ground the motion was founded. The court has not limited itself in its action, and has set aside the verdict without assigning any reason for it, and it was not bound to assign anjq and there is absolutely nothing upon the record to show that it erred in its judgment. There is much argument by appellant’s counsel as to liow careful a court ought to be about disturbing the verdict of a jury, and this argument would have had force if the appellate court could see upon what facts the court acted. If, as they claim, there wTas sufficient evidence
The record shows no objection whatever by the defendants to the court setting aside the verdict and granting a new trial. In the case of Mann, exr., v. Perry, admr., &c., 3 W. Va., 581, it was held that after verdict, without objection, it was too late to make the action of the court in excluding evidence irrelevant to the issue under the pleadings and not objected to at the time, a ground for setting aside the verdict and awarding a new trial. It is true that it is provided in section nine of chapter one hundred and thirty-one of the Code of West Virginia, that “ a party may avail himself of any error appearing on the record by which he is prejudiced without excepting thereto,” but it was not intended by this section to provide that a party might avail himself of any error appearing on the record, even if to his prejudice, without objecting thereto. Can he be permitted to let irrelevant testimony go to the jury without objection, and after the trial is over, and the other party has had no opportunity to correct the error, to avail himself of an error which he has acquisesced in' and waived? We think not. That clause merely meant to say that it was not necessary to save every error by exception; that, if it was not
For these reasons I am of opinion there was no error in the judgment of the circuit court of Mason county, entered on the 6th day of September, 1872, setting aside the verdict of the - jury, and the judgment of the said court entered on the 10th day of October, 1873, on the second verdict rendered in the case, and that said last named judgment should be affirmed with $30 damages and costs to the appellees.
Judgment' Affirmed.