Turnbull v. Clifton Coal Co.

Haymond, Judge, announced the opinion of the Court: It being insisted by the counsel for the appellants, that this Court cannot properly read the depositions, to which I have referred, because it does not appear in said decree of sale, &c., that the cause was heard upon depositions, it is readily seen from what has gone before, that the first question to be considered by this Court is, whether in reviewing said decre we can read said depositions in support thereof. We are not without authority bearing upon this subject. In the case of Shumate v. Dunbar, 6 Munf. 430, the syllabus as prepared by the reporter is: “1. If it be stated in the transcript of a decree in chancery, that ‘ the cause came on to be heard on the bill, answer and exhibits,’ such hearing must be understood to have been in exclusion of the depositions contained in the record, no proof appearing of notice of the time and place of taking these depositions. 2. In such ease, if the answer deny the equity in the bill and be not impugned by the exhibits, a decree in favor of the plaintiff should be reversed and the bill dismissed.” No opinion of the court in this case appears; but the decree of the court is given which is as fol-' lows : “ This case having come on upon the bill, answer and exhibits in exclusion of the depositions contained in the record, and the answer having denied the equity in the bill; the decree is to be reversed, and the bill dismissed, but without prejudice to any suit the appellees may be advised to bring against Armistead Símpate, or against him and any person — 306 — other than the present appellant.” From the language of the reporter employed in this decree, the court would have read the depositions, if it had appeared, that there was notice of the time and place of taking the same. In the case of Nelson’s adm’r v. Cornwell, 11 Gratt. 724, Judge Moncure in delivering the opinion of the court at page 741 says: “The decree recites, that the cause came on to be heard on the bills, answers, exhibits and award, saying nothing of the commissioner’s report and depositions, which seem therefore to be no part of the record, according to the case of Shumate v. Dunbar, 6 Munf. 430.” In the case of Day v. Hale et als., and Hale v. Hare et als., 22 Gratt. 146, the first section of the syllabus is : “When depositions are taken and filed in a cause, both parties having been present when they were taken, and the decree is obviously based upon them, the omission to refer to them in the decree will be considered a clerical mistake; and the cause will be considered as having been heard upon them as well as upon the other papers.” In these cases Judge Anderson delivered the opinion of the court and at pages 159 and 160 he says: “The next assignment of error we shall notice is, that the decree not stating, that the cause was heard upon depositions, they should be excluded from consideration; and the answers being responsive to the bill and denying its material allegations, it should have been dismissed. The record shows, that depositions were taken by both parties, and that both parties were present at the taking of the depositions, and cross-examined each other’s witnesses; and it appearing from the entry of the clerk, that the depositions were filed in the cause before the hearing, and the decree being evidently founded upon the evidence, it is fair to presume, that it was a clerical omission in drawing the decree, and that the cause was heard upon the depositions. The case of Shumate v. Dunbar, 6 Munf. 430, is not very fully reported. But it was a suit against an absent defendant, and it was incumbent on the court to see, that the proceedings against him were regular and proper; and it not appearing in the record that any notice had been given to him of the time and place of taking the depositions, either by publication or otherwise, the court would not look into them. If this were ¡ap error, it might have been corrected in the — 307 — court below ou motion. A decree cannot be reversed however for want of a replication to the answer, when the defendant has taken depositions, as if there had been a replication. Nor shall a decree be reversed at the instance of a party, who has taken depositions, for an informality in the proceedings, when it appears, that there was a full and fair hearing upon the merits, and that substantial justice has been done. Code, ch. 181, § 4, p. 743. We are therefore of opinion that this objection shall be overruled.” Minor in the 4th vol. part 2 of his Institutes at pp. 1198 and 1199 says: “The decree ought to show on its face, upon what the cause toas heard, e. g., the bill, answer, replication thereto, and exhibits, or as many of them as constituted the foundation of the decree, without, however, reciting their contents, as was formerly the practice in England ; and so rigorously is this rule insisted upon, independently of statute, that when the answer denied the allegations of the bill, and a general replication thereto was filed, and depositions taken impugning the truth of the answer, whereupon a decree was pronounced against the defendants ; yet, because in the decree, the cause was stated to have been heard upon the bill, answer and exhibits, saying nothing of the replication, or of the depositions, the decree was reversed, as if there really had not been either replication or depositions. Shumate v. Dunbar, 6 Munf. 431; see Nelson v. Cornwell, 11 Gratt. 741. This seems, however, to be at all events strido jure, and hardly to be reconciled with the liberal usages which distinguished proceedings in equity, and at present is quite incompatible with the statute of jeofails in causes in equity, which provides (V. C. 1873, ch. 177 § 4), that “no decree shall be reversed for want of a replication to the answer, where the defendant has taken depositions, as if there had been a replication ; nor shall a decree be reversed at the instance of a party who has taken depositions, for an informality in the proceedings, where it appears^ that there was a full and fair hearing upon the merits.” Day v. Hale, 22 Gratt. 160. , The last named provision was the law in Virginia prior to the decision of the case of Nelson’s adm’r v. Cornwell, 11 Gratt. ubi supra. See Code of Va. of 1849, p. 743 § 4; 14 Gratt. 131. — 308 — This same provision is in force with us and constitutes the 4th section of chapter 134 of the Code of this State of 1868. In the case of Camden v. Raymond, 9 West Va. 680 and 690, this Court held according to the last section of the syllabus as prepared by the Court, that “ if a decree recites, that the cause came on to be heard on bill, answer and general replication thereto, and an appeal is taken from such decree, and depositions had been taken to sustain the answer and copied in the record, these depositions will not be read or considered in the Appellate Court.” Judge Green, in delivering the opinion of the Court in this case at page 690, says: “There are appended to the record several depositions, designed to sustain these allegations in the answer of Camden ; but the recitals in the decree of January 24, 1874, of what the cause was heard upon, shows that it was not heard on these depositions. Why it was not heard on these depositions also does not appear, but in the absence of any objection to their exclusion being made in the circuit court, this Court cannot regard their exclusion as any error. And not having been read in the court below, they cannot be read or considered in this Court. Shumate v. Dunbar, 6. Munf. 431.” It does not appear in this case what were the facts in rela-lation to the excluded depositions, but I presume they were not of the character appearing in the case at bar. In the case of Warren and wife v. Syme, 7 W. Va. 474, it was held according to the 8th section of the syllabus prepared by the court, that “the clerk of the court, under the supervision of the court must ascertain the papers filed in a case or referred to in the order-book, as a part of the record ; though where the papers are identified, whether they may be considered as properly a part of the record the court alone can decide.” In this case Judge Hoffman in delivering the opinion of the court at page 494 says: “Though the copies of the deeds from Hogshead to Nevins, from Points to Erskine and Mathews, from them to Henning and from him to Lewis, and the deed of partition between other persons and the plaintiffs are not specified in the bill or order-book as exhibits, and as far as appears here were not endorsed as such, they are in the transcript of the record, certified by the clerk of the — 309 — circuit court, and must be regarded as exhibits recited in the decree, as read on the hearing.” It does not appear by the record in the case at bar, as it did in the case of Day v. Hale et als., 22 Gratt. 146, 160, that depositions were taken by both parties, and that both parties were present at the taking of the depositions, and cross-examined each other’s witnesses; but as we have seen it does appear, that the defendants had reasonable notice of the time and place of the taking of said depositions, and that the clerk of said circuit court did officially endorse upon the depositions the time when and manner how they were received and filed. It appearing in this case in relation to the depositions in question, as I have above stated, I feel authorized in support of said decree to presume with satisfactory certainty, that the court below did read and consider the said depositions (nothing appearing against so doing except the fact, that the decree does not recite, that the cause was heard upon depositions or the equivalent thereof), and to consider the failure to recite in the decree, that the cause was heard upon depositions, was a mere clerical mistake, and to hold, that this Court may read and consider said depositions in reviewing said decree. I am of opinion for a number of manifest reasons, that it is proper though not indispensible for the clerk, when depositions are filed in his office by either party to a cause, to officially endorse or enter upon them the time, when they were filed, and to verify such endorsement with his official signature. Such an endorsement or entry I could feel authorized with some safety to consider as an authorized official act of the clerk and give it some weight and consideration in determining, whether the omission to recite in a decree', that the cause was heard upon depositions, should be considered by this Court as being a mere clerical mistake. I am of opinion, that when it appears, that the opposite party was duly notified or cross-examined the witness, and also, that the clerk of the court endorsed or entered upon the depositions the time, when they were filed, and the depositions appear by such endorsement to have been filed before the hearing of the cause, and the depositions support the decree appealed from, and I feel authorized (there being nothing else in the way) to hold, that the omission to recite in the — 310 — decree, that the cause was heard upon “depositions,” or its equivalent or to in any way refer to depositions was a mere clerical mistake, and that the depositions were read and considered by the court below at the hearing of the cause, and that this Court may read and consider such depositions in reviewing the decree appealed from. This far'at least the case in 22 Graft, (ubi supra) goes in principle, as I think. But it seems to me, that no fixed rule for universal guidance can with safety be laid down upon the subject. The exercise of some discretion must be left to the Court to meet the demands of justice under the different facts and circumstances and their nature, which may appear in the different cases, in which the question may arise. It is however eminently proper, ■that the court shall take care in all cases touching this subject to avoid establishing by its decision any dangerous precedents. A record and every part of it is held by the courts to be a verity. It may sometimes be corrected in the mode and manner prescribed by law under certain circumstances; but seldom, if ever, can it be contradicted by evidence aliunde. Appellate Courts, it seems to me, act wisely when they exercise great care and caution in determining, what is a part of a record in a case before them and what is not. They should be careful in forming their conclusions and decisions upon this subject not to establish doctrines or principles, which will open the door to fraud and imposition upon them and a party or parties litigant in their courts by adding to or otherwise tampering with the record of cases before them. The general rules and principles governing courts of equity with us as to recitals in decrees as to what a cause is heard upon, is so well understood by our courts and the legal profession, that the omission of such recital in whole or part does not often occur by simple accident or inadvertance of the court or counsel, though we know it does sometimes so occur. .With us the rules, by which we determine, what is a part of a record in causes before us for review both at law and equity, are so liberal, that it may almost be said, that they are loose. If these rules, to cover what sometimes are called hard cases, are extended much further, they will indeed be loose ; and in that event it will become doubtful, whether a record of the proceedings of a court of justice can with propriety be — 311 — called and treated as a verity. But be this as it may, I am of opinion from what appears in this cause, that the court below did read and consider the depositions at the hearing of this cause, and that therefore this Court may read and consider them in reviewing the decree appealed from. A mechanic, builder, artisan, workman, laborer or other person who does do or perform any work or labor upon or furnish any material in the erection or construction of a house or other building on land or in altering or repairing any house or other building or its appurtenances by virtue of any contract with the owner thereof or his agents has a lien for the value of such labor and material upon such house or other building and its appurtenances and also upon the lot of land, upon which the same is situate, under the provisions of the 2d section of chapter 139 of the Acts of the Legislature of 1872-3. It appears in this case, that the plaintiff within thirty days from the time he ceased to furnish the material in the bill mentioned filed with the clerk of the county court of the county of Mason, in which was the house or building, for the repair of which the material in the bill mentioned was furnished by the plaintiff and used by the defendant, a just and true account of the amount due him for said material after allowing all credits together with á description of the property covered by said lien sufficiently accurate for identification with the name of the owner (the said coal-company), which account was subscribed and sworn to by the plaintiff according to the provisions of the 3d section of said chapter 139. It also appears, that the clerk of the county court of said Mason county admitted said aceount'with the oath of the plaintiff verifying the same together with the said descriptiod of the property to record in his office on the 17th day of August, 1878, and (as required by the 4th section of said chapter 139) within thirty days from the time plaintiff ceased to furnish the said material. See upon this subject Mays v. Suffner, 8 West Va. 384 opinion of the court p. 386. The depositions filed by the plaintiff satisfactorily prove and establish his said account and claim in his bill mentioned for material furnished the said coal-company for the purpose in the bill mentioned, and that said material was delivered'by — 312 — plaintiff to said company under and in pursuance of a verbal contract made between the plaintiff and said coal-company, as in the bill mentioned, and that the said company used the said material so delivered for the purpose in the bill mentioned. Upon the whole it seems to me, that a full and fair hearing was had of this case in the court below, and that the decree appealed from is substantially just-and right. For the foregoing reasons the decree of the circuit court of the county of Mrson rendered in this cause on the 21st day of April, 1880, must be affirmed, and the appellant, the Clifton Coal Company, must pay to the appellee his costs about his defence in this court expended and damages according to law; and the cause must be remanded to the said circuit court for further proceedings therein to be had according to the rules and principles governing courts of equity. The Other Judges CoNcurred. Degree Affirmed. Cause Remanded.