31 W. Va. 370 | W. Va. | 1888
This is a civil aclion commenced by M. Tally against C. S. Despard & Co. before a justice of Wood county to recover $147.14 for work and labor performed by the plaintiff for the defendants. The justice gave the plaintiff judgment for his claim, and the defendants appealed to the Circuit Court of that county, where the case was tried by a jury of six, and a verdict found for the plaintiff for $135.50, on which the court entered judgment. From this latter judgment the defendants have obtained this writ of error. The record shows that the jury was sworn “to try the issue” between the plaintiff and the defendants, and because the record does not show that any plea was filed by the defendants, or
It must be remembered that this action was commenced in a justice’s court, and that in such cases the pleadings need not be in writing. .Not only so, but the statute expressly declares that in such case “ the appeal may be tried upon the pleadings made up in the justice’s court,” etc., and that “ all lawful evidence produced in relation to the matter in difference between the parties shall be heard, whether such evidence was produced before the justice or not; and the case shall be determined, without reference to the judgment of the justice, on the principles of law and equity.” Section 169, ch. 50, Code 1887. The statute does not prescribe the form of the oath of the jury in appeal cases, but the whole tenor of the statute plainly indicates that technicalities are not to be regarded in such cases; that all the proceedings maybe informal, yet, if substantial justice has been done, and the parties have had a fair opportunity to present their claims, the judgment should be upheld. Todd v. Gates, 20 W. Va. 364. There is nothing in this case to show that the defendants were in any sense injured or prejudiced by the fact that the jury was sworn “to try the issue,” even if it were conceded that this was an irregularity,—a thing by no means certain', — and therefore this was no ground for setting aside the verdict or reversing the judgment. Hallam v. Jacks, 11 Ohio St. 692; Sinnamon v. Melhourn, 4 G. Greene, 309.
The only other error alleged by the plaintiffs in error is that the court improperly refused to consider or give certain instructions which they requested. The facts certified on which this alleged error is based, are as follows : The argument of counsel to the jury on both sides was closed about 4:30 p. m. of the day; and neither party, before or at the time, requested any instructions to the jury. The case was then submitted to the jury, and the papers handed to them, with directions to retire to consider of their verdict; as some of the jury wished to be adjourned for the day, the court adjourned the jury until the next day. On the next morning, after the jury had been called, and were about to be sent to their room, but before thej’- retired to consider of their verdict, the counsel for the defendants moved the court to give
It is true that this Court would not reverse the judgment of the Circuit Court, even if it erroneously declined to consider the instructions, unless they were such as should have been given to the jury; but, if the court properly refused to consider them, then the judgment must be affirmed, although they are such as should have been given to the jury if offered at a proper time. In this latter view, the propriety or impropriety of the instructions is wholly immaterial. The orderly proceedings of a court upon a trial, of necessity, rest very much in the discretion of the presiding judge; and unless it is made to appear that this discretion has been abused, it is not within the province of the appellate court to interfere with its exercise. However, it is the right of counsel to have the jury instructed as to the law; and when, at a proper time and. in a legal manner, instructions are requested, it is the duty of the court to consider, and either give or refuse to give them, accordingly as it may regard them as proper or improper in the case. And this being a valuable right to litigants, if the court, in a proper case, declines to consider, and consequently withholds from the jury, an instruction which is proper in itself, and this is made manifest by the record, the judgment of the trial court will, for this reason alone, be reversed. Chapman v. McCormick, 86 N.Y. 479; Billings v. McCoy, 5 Neb. 187.
In the case at bar it is not made manifest by the record that the trial court abused its discretion. It is the duty of counsel to facilitate, as far as possible, without prejudicing
AFFIRMED.