Perkins v. Hanna

Kenna, Judge: The defendant below prosecutes this writ of error against a judgment of the Circuit Court of Greenbrier County entered in an action of trespass on the case, and upon final submission the defendant in error in writing moved to strike from the record “Bill of Exceptions No. 1”, and to dismiss this writ of error because there is no record entry making the transcript of the testimony a part of the record by bill of exceptions or otherwise, and that the several assignments of error are all based upon the insufficiency of the proof to sustain the verdict or upon the giving or refusing of instructions to the jury, and therefore cannot be considered by this Court in the absence of the evidence. The plaintiff in error does not contend that any one of the assigned points of error could be sustained by this Court if the testimony below is not a part of the record here, so that it follows if “Bill of Exceptions No. 1” is stricken, the writ must be dismissed. On the twentieth day of October, 1943, within sixty days from the final adjournment of the July term of the Circuit Court of Greenbrier County, during which the judgment complained of was entered, “Bill of Exceptions No. 1” was settled and signed by the judge of that court. This occurred during the court’s vacation. The paper in question without the evidence reads as follows: “CERTIFICATE OF ALL THE EVIDENCE AND PROCEEDINGS REPORTED. DEFENDANTS BILL OF EXCEPTIONS NO. 1 “Be it remembered, that heretofore, to-wit: on the 3rd, day of August, 1943, the same being one of the Judicial days of the July, 1943, term of said Court, this cause came on for trial before the Honorable M. L. Jarrett, Judge of said Court, and a jury, in the court room at the Court House in said *529 County and State, whereupon the following proceedings were had and testimony taken in due form of law. “Thereupon, the plaintiff to maintain the issue on his part introduced to the Court and jury the following evidence: (Here follows plaintiff’s evidence in chief.) ' “The defendants, to maintain the issue on their part introduced to the court and jury the following evidence, to-wit: (Here follows defendants’ evidence in chief.) “Thereupon to further maintain the issue on his part the plaintiff offered the following evidence in rebuttal: (Here follows plaintiff’s evidence in rebuttal.) “I, M. L. Jarrett, Judge of the Circuit Court of Greenbrier County, West Virginia, do hereby certify that the foregoing is a true and correct transcript of the evidence introduced on the trial of the above mentioned case held on the 3rd day of August, 1943. “And the undersigned Judge of said Court further certifies that the foregoing evidence was all the evidence introduced to the Court and jury on behalf of the plaintiff'and as well also all the evidence introduced to the Court and jury on behalf of the defendants upon the trial of the. foregoing case, together with the objections of the •respective parties thereto, as well as the rulings of the Court thereon, and the exceptions of the respective parties to such rulings. “And inasmuch as the foregoing matters and things do not appear of record in this case, the defendants, W. R. Hanna and Mary R. Hanna, by counsel, here tender this their Bill of Exceptions, marked for identification, ‘Certificate of all the Evidence and Proceedings Reported, Defendants Bill of Exceptions No. 1,’ and pray that the same be signed, sealed and saved-to them and made a part of the record in this case. “All of which is accordingly done this 20th day of .October, 1943, and within sixty days from the final adjournment of the July, 1943, term of the *530 Circuit Court of Greenbrier County, at which the judgment complained of was entered. M. L. Jarrett, Judge of the Circuit Court of Greenbrier County, West Virginia.” The plaintiff in error, in resisting the motion to dismiss, advances the contention that the paper used should now be looked upon not as a bill of exceptions but as a certification of the evidence by the trial judge under the provisions of Code, 56-6-36, and that since the section referred to contains no provision requiring a certification of evidence to be made a part of the record by order, such an added requirement would be judicially imposed and would defeat the obvious purpose of the certification provision, which is to simplify appellate procedure. We are of the opinion that the paper under consideration must be treated as a bill of exceptions, since we believe that that is its form and substance, despite the words added to its title and the added superfluous language in its body. To treat it as a certification would be a definite contradiction of both its wording and form. Code, 56-6-35, dealing with bills of exception, also requires the court when necessary to certify all of the evidence, so that the fact that the correctness of 'the transcript is certified by the trial judge does not determine the nature of the paper as between a bill of exceptions under Code, 56-6-35, or a certification in lieu thereof under Code, 56-6-36. We therefore think that the additions to the paper before us are to be properly regarded as a meticulous effort to comply fully with the requirements of Code, 56-6-35. We believe that this position is fortified by the fact that Code, 56-6-36, dealing with certification in lieu of a bill of exceptions, provides verbatim an approved form of certification. This statutory form is not used in this instance, and, while the provision is not mandatory, the paper before us if subjected to either of two classifications, under both of which certification of the evidence is necessary, the exact use of a legislatively approved form might be decisive. Here we do not find it. There is no prescribed statutory form *531 of certifying evidence included in the sections dealing with bills of exception. On behalf of the plaintiff in error it is urged that since Code, 56-6-35, provides that if the bill of exceptions is signed by the judge in vacation he shall certify the same to the clerk of the court who shall enter the certification upon the order book whereupon “* * * * any such bill of exceptions so made in vacation shall be a part of the record and have the same effect as if made in term.”, and that since it appears that the judge in this instance had signed the bill of exceptions and certified the transcript, the clerk’s duty to enter both the certification and the bill of exceptions upon the order book being merely ministerial under a mandatory provision, should be regarded as having been performed. In Hall v. Shelton, 93 W. Va. 592, 116 S. E. 12, the bill of exceptions had been certified by the trial judge in vacation within the proper time but no order had been entered making it a part of the record. This Court held that the evidence included in the bill had not been made a part of the record, and dismissed the writ of error due to the fact that the assigned points could not be-considered. True, the Shelton case was decided before the present statute was enacted in the Code of 1931, but a comparison of its provisions with those of Section 9 of Chapter 131 of Barnes Code of 1923 shows no material difference in wording, and the discussion found in Monongahela Railway Company v. Wilson, 122 W. Va. 467, 10 S. E. (2nd) 795, applies the present statute under the former cases. Under none of them does the settling and signing of bills of exception in vacation make them, without an order or certificate to be entered of record, a part of the record. The statutory provision is that then it “shall have the same effect, as if made in term”. It is urged on behalf of the plaintiff in error that the paper under consideration should be treated as a certification of the evidence under Code, 56-6-36, and, further, that if so regarded it is unnecessary to make it a part of the record by order or certificate entered of record to have it considered on writ of error. *532 In considering the two lengthy sections dealing with them separately, it becomes quite evident that the Legislature intended to preserve bills of exception and the rules governing their use and also to provide a simplified method of accomplishing the same result, the Revisers being influenced, no doubt, by the history of certification in.Virginia where between 1916 and 1919 that was the sole way of enlarging the record in actions at law so as to include a transcript of the testimony, the statute relating to bills of exceptions having been replaced by the certification statute in 1916 and reenacted in 1919, the Virginia statutes having since provided both methods. If our Legislature had intended that a single paper could partake of the nature of both and be treated as either by this Court on writ of error, it would certainly have so stated. In our opinion to hold that the paper before us is not a bill of exceptions would be to plainly contradict its treatment by the trial judge, as well as its wording, form, and substance. It therefore follows, due to the fact that it was not made a part of the record by order or certificate, that the evidence is not in the record before us, the assignments of error cannot be considered, and the motion to dismiss must be sustained. It is so ordered. Writ dismissed.