23 W. Va. 472 | W. Va. | 1884
The plaintiff in error insists that the said judgment was erroneous, and its counsel has argued several interesting questions supposed to arise upon the face of this record, but-from the view this Court takes of the case, as here presented, it will be unnecessary to consider them.
The parties to this case, submitted the trial thereof to the judgment of the court in lieu of a jury — upon the transcript of the (locket of the justice, the agreement of facts filed in the case, and “other ¡wipers in the case ” and the court upon consideration thereof, after hearing the arguments of counsel, rendered its judgment in favor of the defendant in error. There was no exception to this opinion and judgment of the court, neither was the court asked to certify either the facts proved, or the evidence adduced before in on the trial. The order shows only, that the case was submitted on the transcript of the docket of the justice, the agreement of facts filed, and “ other papers in the case.” What these other papers contained, or what they were, does not appear; there is nothing in this record to point out or identify them, or to show that they, or any of them, are contained in the tran
While it may not be necessary in every instance, where the case is submitted for trial to the court in lieu ot a jury to except to its opinion and judgment by bill of exceptions, certifying all the evidence adduced on the trial, yet it is the safer and bettor practice to do so, for unless the record in some manner fully sets out all the evidence which was before the court, it will be impossible to determine whether the judgment is warranted by the evidence or not; and this Court will not reverse the judgment'of the circuit court, unless it clearly appears to be erroneous; for it is a well settled rule that the record must affirmatively show that the plaintiff in error has been prejudiced by 'the judgment complained of; or in other words,.that the judgment is clearly erroneous— Miller v. Rose, 21 W. Va. 291; Shrewsbury v. Miller, 10 W. Va. 115; Richardson v. Donohoo, 16 W. Va. 685; Taylor v. Boughner, Ib. 327; Bank of the Valley v. Bank of Berkley, 3 W. Va. 386. The record in this case fails to show all the evidence which was before the circuit court, and we cannot therefore say that the said judgment is erroneous.
We are therefore of opinion that the said judgment of the circuit court of Marion county must be affirmed, with damages and costs to defendant in error, against the plaintiff in error.
AeEIRMET).