Charleston Trust Co. v. Todd

Miller, Judge : This was an action of debt begun on June 30, 1924, in the Common Pleas Court of Kanawha County. The process is not found in the record; and the clerk certifies that it could not be found. To what day it was made returnable the record does not show. ¥e may perhaps infer that it was returnable to July rules, for at July rules the record shows that the plaintiff appeared and filed its declaration. The record further shows that on the same day process was issued. The plaintiff also filed the affidavit of one H. R. Johnson, sued out an order of attachment, and placed the same in the hands of the sheriff for execution. The sheriff made his return showing a levy by him upon certain real estate of the defendant Anna M. Todd. The record of the court ends with these proceedings, except that on the 18th day of February, 1925, it is shown that the parties by their attorneys appeared, and the plaintiff moved the court to render judgment in its favor for the debt alleged in the declaration and on the attachment sued out, which motion the court overruled and the plaintiff excepted; and thereupon the defendants moved the court to enter judgment in their favor, and in support thereof tendered what purports to be the verdict of a jury represented to be written on the back of the declaration, and also a paper writing, which they represented was a transcript of the evidence, identified in the order by the endorsement, "Charleston Trust Co. vs. Anna M. and W. A. Todd, Transcript of Evidence, Original.” And in further support of their mo- *33 lion defendants also tendered papers designated as defendants’ pleas numbers 1, 2, 3 and 4, and defendants’ plea in abatement, all of whieb were found among tbe court papers belonging to tbe case, but witb no order or endorsement tbereon showing tbat tbey bad ever been filed in tbe case or issues made up tbereon. Although tbe motion referred to a verdict supposed to be endorsed on tbe back of tbe declaration, neither tbe motion nor tbe order of the court shows in whose favor tbe verdict purported to be. Tbe court also overruled defendant’s motion. And tbe same order shows tbat tbe plaintiff moved tbe court to permit defendants to file their pleas and to allow it to join issue, and to have a trial tbereon, in which motion tbe defendants did not join. This motion tbe court also overruled, and plaintiff excepted. Finally plaintiff moved tbe court for permission to dismiss its action without prejudice to its right to institute any other suit, action or proceeding for tbe same cause which it might be advised to be proper. This motion tbe court sustained-; and tbe action was accordingly dismissed. It was from tbe latter order tbat tbe present writ of error was awarded upon tbe petition of tbe defendants. Two points -of error are relied on by defendants: First; tbe refusal of tbe trial court to enter judgment in their favor upon tbe reputed verdict of tbe jury. Second; tbe granting of plaintiff’s motion to dismiss its action without prejudice. Tbe several motions referred to were presented to bis Honor Judge Morgan Owen, who took office as judge of tbe Court of Common Pleas on January 1, 1925. Tbe suit was begun, and tbe trial, if one was bad, occurred during tbe incumbency of Judge Alexander, Judge Owen’s predecessor in office; so tbat in tbe absence of any record of tbe court showing tbe filing of pleas and issues tbereon, or of any such trial and verdict, nothing but tbe stray papers in tbe court file, not even tbe record of any verdict except tbe endorsement on tbe back of tbe declaration, we do not see bow Judge Owen could have done otherwise than be did do on tbe several motions presented to tbe court. Perhaps, if the defendants bad joined in plain *34 tiff’s motion to permit the filing of the several pleas and the joining of issue thereon, there might have been a trial and final judgment in the case. Defendants did not join in that motion, evidently for the reason that they preferred to stand on their supposed rights to a judgment on the verdict endorsed on the declaration, if there was such a verdict, which the record before us fails to show. Plaintiff evidently predicated its motion for judgment for the debt and upon the order of attachment, on the theory that defendants were in fault of appearance at rules, and that the common order at July, 1924, rules, confirmed at August rules, had become final after the end of the following term of court, and that nothing remained for the court to do but to enter judgment according to the affidavit filed with the declaration. It does not appear, however, that the common order was confirmed, or that defendants did not appear and plead, and file their counter affidavit so as to set aside the office judgment. The August rules are not in the record. Presumptively, if there was a trial on the pleas, and a verdict rendered, as defendants contend, the office judgment, if one, was set aside. And possibly, if there was a trial and verdict, on issues joined on the defendants’ pleas, the record might have been corrected or completed by some nunc pro tunc orders, and justice done in that way; but in the absence of any such record, how could the judge of the common pleas court say, and how can we say, that either of the parties was entitled to final judgment as demanded? The record presented to Judge Owen spoke no common order confirmed, no pleas, no issues, no empaneling of a jury, no anything, upon which the motions of the parties could be properly predicated, except only the right of the plaintiff before verdict to suffer a nonsuit or dismiss its action. The record presents two unsurmountable obstacles in the way of defendants’ motion for judgment on the verdict: first, no prior order of the court shows the filing of any pleas at rules or in court, or joinder of issue thereon; second, no order 'of the court shows the empaneling of a jury, or the rendition of a verdict. If no issue was made up to be tried, even if a verdict was in fact returned, it would be erroneous, nugatory or void. Del-Carbo Coal & Coke Co. v. Cunninghame, *35 93 W. Va. 12, 116 S. E. 719; Western Maryland Railway Co. v. Cross, 92 W. Va. 9; Brown v. Cunningham, 23 W. Va. 109; State v. Brookover, 42 W. Va. 292; Enc. Dig. Va. & W. Va. Rep. 1925 Sup. 1010. On the second proposition, the want of any record of trial and verdict, it suffices to say that courts must speak by their records; what is not thereby made to appear, does not exist in law, and for the purpose of the verity thereof. State v. Vest, 21 W. Va. 796, 800, 802; 1 Enc. Dig. Va. & W. Va. Rep. 505, et seq. The right of a plaintiff to dismiss, discontinue or suffer a nonsuit at any time before submission of his case to the court or jury is not challenged, and there can be do doubt of that right under the facts appearing in this case. Stone v. Kaufman, 88 W. Va. 588; 1 Enc. Dig. Va. & W. Va. Rep., 1925 Suppl. 536. We find no reversible error in the judgment below, and it will be affirmed. Affirmed.