Pettry v. Chesapeake and Ohio Railway Company , 148 W. Va. 443 ( 1964 )

Calhoun, Judge,

dissenting:

Very respectfully I dissent from that part of the majority opinion which is summarized in the second point of the syllabus. In order that the majority opinion may be appraised in proper perspective, a brief review of the appellate history of the case may be helpful.

When the case came to the circuit court as an intermediate appellate court, the distinguished judge of that court, on his own motion, took the view that counsel for the appellant had not given prompt formal notice of the filing of the transcript as required by R.C.P. 80 (c); held that the giving of that notice was jurisdictional; and for that reason denied the appeal. Implicit in the circuit court’s judgment, of course, was a recognition that the Rules of Civil Procedure were applicable to the situation, even though the appeal was to the circuit court from a trial court of record of limited jurisdiction. From that judgment of the circuit court, this Court granted an appeal.

When the case reached this Court, counsel for the ap-pellee, the plaintiff below, asserted for the first time that a bill of exception, or a certificate in lieu thereof, was a jurisdictional prerequisite to the appeal to the circuit court. In support of that proposition reliance was placed on R.C.P 81 (a) (1), the language of which is as follows: “These rules do not apply to any case which comes before a circuit court upon appeal from or to review the judgment, order, or ruling of any court of record or administrative agency. These rules do not apply to any case on appeal from a justice of the peace court except by order of the court in the proceeding and only to the extent provided by the order.”

The first majority opinion apparently held that this Court lacked jurisdiction to entertain the appeal for the reason assigned by the circuit court and also because of an absence of any bill of exception or certificate in lieu thereof. The Court in the first majority opinion, on its own motion, also referred to numerous additional matters which were regarded as irregularities in the procedure. It was difficult for me to determine from the opinion which of the many asserted irregularities were regarded by the Court as jurisdictional in nature. In these circumstances, I filed a dissenting opinion in which I took the position that none of the irregularities was jurisdictional or prejudicial in character and that the case should be remanded to the circuit court with directions to act upon the petition for appeal.

The appellant filed a petition for rehearing. In their brief submitted in support of the petition for rehearing, counsel stated: “The majority opinion has evoked interest in the West Virginia State Bar’s Committee on Rules, a number of the members of which express surprise and great interest in this decision. A number of other lawyers have expressed concern with the opinion so that it is believed likely if this Court will grant a rehearing, interested and official groups such as the bar committee will desire to be heard.”

A rehearing was granted. In their brief submitted on the rehearing, counsel for the appellee took no note of the many procedural questions which had been raised by this Court, on its own motion, in the first opinion, but relied upon two propositions only: (1) That the Rules of Civil Procedure are manifestly inapplicable to an appeal from a trial court of record of limited jurisdiction to a circuit court and hence a bill of exception, or a certificate in lieu thereof, is required in such case; and (2) that the appellant was guilty of a jurisdictional dereliction in failing to give “effective notice” of the filing of the transcript, pursuant' to R.C.P. 80 (c).

By reliance upon the salutary legal proposition stated in the first point of the syllabus, the second majority opinion summarily disposes of all the supposed irregularities so assiduously raised previously by the Court on its own motion. It is regrettable that the same legal principle was not applied in the first majority opinion.

The second majority opinion summarily disposes of the alleged failure of the appellant to give effective notice, pursuant to R.C.P. 80 (c), by stating: “It will only be necessary for the disposition of this case to consider the first matter argued and briefed.” To that extent, at least, the second majority opinion avoids the illogical holding of the first opinion that the Rules of Civil Procedure are applicable in part and inapplicable in part to the present situation. Nevertheless, it is difficult for me to determine from the present majority opinion which rules are regarded as applicable and which are regarded as inapplicable in this case.

R.C.P. 80(f) provides: “Bills and certificates of exception are abolished.” It is impossible to conceive how a proposition could be stated with greater clarity. This Court has held in innumerable cases that when language of a statute, constitutional provision or other written instrument is clear, courts are not at liberty to undertake to construe or interpret it but rather the courts must apply it inexorably and faithfully in accordance with the intent clearly expressed. I assume that the same legal principle must be applied by the courts in relation to the Rules of Civil Procedure. The majority opinion, nevertheless, mercilessly disregards and refuses to apply that legal proposition to the clear language of R.C.P. 80 (f). That opinion reads into the clear language of the rule a qualification or an exception which is absent from the language used but which, in effect, is as follows: Provided, however, that bills and certificates of exception shall be required in all cases which are appealed from a trial court of record of limited jurisdiction to a circuit court sitting as an intermediate appellate court.

When we bear in mind all the painstaking study and careful scrutiny applied to the formulation and promulgation of the Rules by so many practicing attorneys, law school professors and judges, including members of this Court, there is presented a situation which reflects unfavorably upon the legal profession of this state if we assume that the qualification or exception pronounced by the majority was omitted either through oversight or because of lack of capacity for lucidity of expression. The majority opinion fails to point out any logical or reasonable basis for a rule which would require bills or certificates of exception in cases such as this and not in cases involving appeals from circuit courts to this Court.

R.C.P. 80 (f) is not the only provision of the Rules which has been hurdled by the majority opinion. R.C.P. 80 (a) and (b) provide in clear language that when “the proceedings had and testimony taken” at the trial are stenographically reported by the court reporter, a duly certified transcript thereof “becomes a part of the record” when it is filed with the court during the pendency of the civil action or at any time afterward; that such a transcript shall be certified by the court reporter to be an accurate transcript “of the proceedings had and testimony taken” and shall state “whether the transcript includes all or a part only of the proceedings had and testimony taken” at the hearing or trial; and that “no other or further authentication is necessary.” These clear provisions are found in the same Rule which so clearly abolishes bills and certificates of exception. Obviously, they are designed to provide a method for making a part of the record “proceedings had and testimony taken” without the necessity of bills or certificates of exception.

Even before the Rules were made effective, bills or certificates of exception were not required in relation to matters already a part of the record. Code, 1931, 56-6-35. “The purpose of a bill of exceptions is to exhibit the supposed mistakes of the trial court which do not appear upon the record, and which cannot otherwise be brought before an appellate court for review and correction if erroneous.” Penix v. Grafton, 86 W. Va. 278, pt. 1 syl., 103 S. E. 106; Rollins v. Daraban, 145 W. Va. 178, pt. 1 syl., 113 S. E. 2d 369. The “record” embraces many things without the aid of bills or certificates of exception. Rollins v. Daraban, 145 W. Va. 178, 182, 113 S. E. 2d 369, 372; Burks Pleading and Practice (4th Ed.), Section 301, page 539. The writ or process was made a part of the record by statute. Code, 1931, 56-3-32, as amended. In a similar way instructions given and refused were made a part of the record. Code, 1931, 56-6-20.

“In short, a bill of exceptions is only necessary when it is desired to preserve evidence, orders, rulings, and actions of the court, and occurrences happening during the trial, which would otherwise not be parts of the record, * * *.” Hinton Milling Co. v. New River Milling Co., 78 W. Va. 314, 320, 88 S. E. 1079, 1082. Hence, there can be no conceivable basis for holding that bills or certificates of exception are necessary in a case such as this unless we ignore and regard as meaningless the portion of R.C.P. 80 (a) which so clearly states that “a duly certified transcript thereof becomes a part of the record of the action when it is filed with the court * * (Italics supplied.) That clear provision also is hurdled by the majority opinion.

The official court reporter has duly certified “that the foregoing is a true and correct transcript of all the proceedings had and testimony taken,” in the trial. The transcript certified by her includes the pleadings, motions, orders, testimony, and instructions .given and refused. I have not been advised that anybody contends that the court reporter improperly failed to include anything. And yet, in the face of the clear provisions of the Rules quoted above, the Court holds that it lacks jurisdiction to entertain the appeal because it has before it no record of the trial of this case in the Common Pleas Court of Kanawha County.

R.C.P. 1 provides: “These rules govern the procedure in all trial courts of record in all actions, suits, or other judicial proceedings of a civil nature whether cognizable as cases at law or in equity, with the qualifications and exceptions stated in Rule 81” (Italics supplied.) The qualifications and exceptions upon which the majority opinion is predicated are stated in R.C.P. 81 (a) (1) as follows: ‘‘These rules do not apply to any case which comes before a circuit court upon appeal from or to review the judgment, order, or ruling of any court of record or administrative agency.” (Italics supplied.)

At the outset, it will be noted that both R.C.P. 1 and R.C.P. 81 (a) (1) commence with the same use of the plural: “These rules.” It is obvious, therefore, that the two provisions are undertaking to define situations in which none of the Rules applies. There is no way the Rules can be read to state or mean that the language quoted from R.C.P. 81 (a) (1) defines situations in which the Rules may be regarded as applicable in part and inapplicable in part. The use in the two rules of the words “These rules” necessarily implies a reference to the whole body of Rules in their entirety. Therefore, if the majority opinion is correct in the holding that bills or certificates of exception are required in all cases of appeal from trial courts of limited jurisdiction to circuit courts, then there' can be no escape from the proposition that none of the Rules can be applied to such a case. The result of the majority opinion seems to be that the Rules must be applied in a case commenced and tried in the common pleas court in all civil cases, except that, if ultimately the losing litigant applies to the circuit court for an appeal, then and in that situation the Rules, or at least some of them, retroactively become inapplicable. In such a situation, what about such matters as rule day proceedings, maturing of cases for trial, process and common law forms of action which were essential before the Rules became effective? Are the plaintiff’s verdict and judgment erroneous or void because of an absence of such procedural steps?

I believe the majority may have fallen into the error of regarding the matter of “making the record,” making matters a part of the record, objections and exceptions, or the matter of authenticating the record for purposes of appeal, as something other than “procedure in all trial courts of record.” All such matters, including the execution of bills of exception or certificates in lieu thereof, have always been and, where applicable, still are a part of the “procedure” in the trial court, from which appellate proceedings are prosecuted.

R.C.P. 81(a) (1) provides that the Rules do not apply to any case “which comes before a circuit court upon appeal from or to review the judgment, order, or ruling of any court of record or administrative agency.” (Italics supplied.) The making or authentication of the record in such a case is not a function which has “come before a circuit court” on appeal. (Italics supplied.) Such matters are no part of the function of the appellate court in its efforts to “review” the judgment, order or ruling of the court of limited jurisdiction.

R.C.P. 81(a) (1) is redundant and almost certainly is used as a precautionary measure to insure that all would understand that these Rules do not apply to the procedure in a circuit court sitting as an intermediate appellate court.

R.C.P. 1 states: “They [the Rules] shall be construed to secure the just, speedy, and inexpensive determination of every action.” Bearing in mind the admonition addressed to us in the language quoted immediately above; and bearing in mind also the spirit, purpose and intent of rules of this nature throughout the land, it is shocking to me that the majority opinion bypasses the clear, unmistakable language of R.C.P. 80(f) which so clearly abolishes bills and certificates of exception and the language of R.C.P. 80(a) and (b) which so clearly provides a method whereby all “proceedings had and testimony taken” at the trial may be made “a part of the record;” and bases its devastating holding upon an unnatural, unreasonable, tenuous construction of R.C.P. 81 (a) (1) which provides that the Rules do not apply to any case which comes “before” a circuit court on appeal “from * * * the judgment * * * of any court of record.”

The reason for not applying the Rules to the mere appellate proceedings in the circuit court is obvious. A rule of construction which requires bills or certificates of exception in cases such as this, and not in any case appealed from a circuit court to this Court, is utterly devoid of any basis in logic, common sense or justice.

It may be that the Rules should be applied fully to a case tried de novo’ on its merits by a circuit court on appeal from a trial court of limited jurisdiction pursuant to Code, 1931, 58-4-18, or to a case tried by a circuit court de novo on its merits on appeal from a county court pursuant to Code, 1931, 41-5-7. Here we are not dealing with a case tried by the circuit court de novo and on its merits. The circuit court in this case was not called upon to act in its capacity as a trial court, but rather in its capacity as an intermediate appellate court. Lugar and Silver-stein, West Virginia Rules, page 511, states in relation to the Rules: “They do not affect in any manner the procedure for securing review in an appellate court of decisions in a trial court of record, whether or not the appellate court may also be a trial court of record. They do not affect the procedure on such review. Rule 81 (a) (1). * * *. Nevertheless, some of the Rules will affect what an appellate court may properly consider on review, for example, Rule 46 makes formal exceptions unnecessary, Rule 51 modifies former principles as to instructions, Rule 61 formulates a harmless error doctrine, and Rule 80 establishes a new procedure for making a transcript or statement of evidence a part of the record.” (Italics supplied.)

The majority opinion states that certain designated Rules “deal with matters pertaining to appellate procedure.” The opinion includes in this category Rule 46 dealing with objections and exceptions; Rule 51 dealing with objections to instructions; Rule 52(a) which provides that findings of fact by a trial court shall not be set aside unless clearly erroneous; and Rule 60(a) which provides for correction of clerical mistakes in an appellate court, with leave of that court. I assume that the majority would also include in that category provisions relating to harmless error and the provisions of Rule 80 (a) dealing with a method for making a part of the record all “the proceedings had and testimony taken” at the trial. The majority opinion apparently holds that none of these provisions is applicable to the present case because they deal with “appellate procedure.” As I have stated, I believe the grievous and glaring error of the majority opinion is the holding that such matters are a part of “the appellate procedure.” On the contrary, none of such matters is a part of the “procedure” in the appellate court. For instance, provisions relating to harmless error, objections and exceptions and objections to instructions are just as binding upon the trial court as upon the appellate court.

The majority opinion makes the following statement: “The West Virginia Rules of Civil Procedure are patterned after the Federal Rules of Civil Procedure, and by necessity such Rules are applicable to appellate procedure when cases are appealed from a trial court of record and the Rules provide for certain procedure to be used in an appellate court.” A wholly inapposite article in 24 Minn. Law Review is cited for that proposition. The opinion erroneously assumes and states in the language quoted above that “the Rules provide for certain procedure to be used in an appellate court.” The opinion seems to state that the Federal Rules deal with appellate procedure; that our Rules are “patterned after” the Federal Rules; and that, therefore, it necessarily follows that our Rules deal with appellate procedure. Federal Rules 73 to 76, inclusive, deal expressly with appellate procedure. We have no comparable rules in this state.

The Federal Rules contain no provision analogous to R.C.P. 80(f) which abolishes bills and certificates of exception and no rule analogous to R.C.P. 81 (a) (1) upon which the majority opinion is based. Procedure for appeal to this Court is governed by statute and by the Rules of Practice in the Supreme Court of Appeals. Procedure for appeals from trial courts of record of limited jurisdiction to circuit courts is governed by the provisions of Article 4 of Chapter 58, Code, 1931, as amended.

The majority opinion states “that proper procedure for appeal in any event was not followed” in this case because the court reporter did not file a carbon copy of the transcript in the office of the Clerk of the Common Pleas Court pursuant to Code, 1931, 51-7-4, as amended. That statute provides that such copy is “to be used, if necessary, in making up the record on appeal, * * * .” If the provisions of R.C.P. 80 (a) and (b) are to be applied according to their plain language, the statutory provision is probably superseded by the Rule. See Lugar and Silverstein, West Virginia Rules, page 565.

The majority opinion states that the record was not indexed by the clerk as required by Code, 1931, 58-4-6. I am unable to determine what is meant by that statement, because the printed record and the original record sent to the office of the Clerk of this Court appear to be properly indexed.

For reasons stated, I would hold that the Rules of Civil Procedure for Trial Courts of record have nothing whatsoever to do with the mere appellate-procedure in a circuit court while sitting as an intermediate appellate court; that all of such Rules which were pertinent were applicable to the procedure in the common pleas court; that no bill of exception or certificate in lieu thereof is necessary or proper in this case; that the record was properly before the circuit court and is properly before this Court; that no procedural irregularities of a prejudicial or jurisdictional nature appear in the case; and, therefore, I would remand the case to the Circuit Court of Kanawha County with directions to act upon the petition for appeal.

I am authorized to say that Judge Browning joins in this dissent.