Perkins v. Hanna

My concurrence in the dissenting opinion prepared by Judge Rose has been noted. I am of the opinion that the evidence and other proceedings in the trial of the case are properly before the Court, under the provisions of Code, 56-6-36, and adopt as my reasons therefor the arguments used in the dissenting opinion. I am of the opinion, however, that so far as the majority opinion may be construed as holding that a bill of exceptions tendered under the provisions of Code, 56-6-35, and signed in vacation, can only be made a part of the record by that character of order required as to a bill of exception signed in term time, the same is erroneous. In my judgment, a bill of exceptions signed in vacation may be made a part of the record upon recording the same in the law order book, and that the recordation may contain nothing more than the certificate of the judge.

Of course, whatever the order or certificate may show, there must be an actual signing of the bill of exceptions.Adkins v. Globe Fire Ins. Co., 45 W. Va. 384, 32 S.E. 194; CoalRun Coal Co. v. Cecil, 94 W. Va. 116, 117 S.E. 697. There can be no question but that when a bill of exceptions is signed in term time, a formal order must be entered in term to make it a part of the record. Monongahela Railroad Co. v. Wilson, 122 W. Va. 467,10 S.E.2d 795, and cases there cited.

In Seibright v. State, 2 W. Va. 591, it was held: "The object of a bill of exception is to spread upon the record and preserve the facts of a case, that the party excepting may have them, and the court's action upon them, reviewed in an appellate court."

Prior to 1891 a bill of exceptions, under the statute, could only be signed in term time. This statute, in its original form, was inherited from Virginia, and appears as Section 9 of Chapter 131 of the Code, 1868, and provides: "In the trial of a case at law in which an appeal lies to the court of appeals, a party may except to any opinion of the court, and tender a bill of exceptions, which (if the truth of the case be fairly stated therein) the judge shall sign, and it shall be a part of the record of the case. If any judge refuse to sign such bill of exceptions, he may be compelled to do so by the court of appeals by mandamus; in which case the bill of exceptions shall be a part of the record to the same extent as if it had been signed by the judge at the proper time. A party may avail himself of any error, appearing on the record, by which he is prejudiced, without excepting thereto." This section was amended in minor particulars by Chapter 206, Acts of the Legislature, 1873, and by Section 9, Chapter 120, Acts of 1882.

The Legislature by Chapter 100, Acts, 1891, amended the above-quoted section in a material way, which will be hereinafter set out in detail. Prior to this amendment, this Court uniformly held that an order was necessary to be entered by the court to make a bill of exceptions a part of the record. Phelps Pounds v. Smith Co., 16 W. Va. 522; Bank v.Showacre, 26 W. Va. 48; Winters v. Null, 31 W. Va. 450,7 S.E. 443. See also Pegram v. Stortz, 31 W. Va. 220,6 S.E. 485.

By the Act of 1891, referred to above, it is provided, among other things, that the circuit court might in vacation, and within thirty days from the adjournment of the term, sign bills of exceptions and certify the same to the clerk of the court, who was required to enter the certification upon the law order book of the court. It also provided that if an action or opinion of the court be upon any question involving the evidence, or any part thereof, the court should certify all the evidence touching the question, and sign such bills of exceptions as might fairly state the case, and that "it shall be made a part of the record of the case." The clerk of the court was required to enter upon the law order book of the court any bill of exceptions so made in vacation, and it was provided that they should be made a part of the record and have the same effect as if made in term. By Code, 56-6-35, referring to bills of exceptions signed in vacation, it was provided: "If such bill of exceptions be 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 of such court, and 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."

Griffith v. Carruthers, 42 W. Va. 59, 24 S.E. 569, appears to be the first case decided on this subject after the statute of 1891 was enacted. It was there held that where a judgment is rendered in a case, and the court allows thirty days to make up and obtain from the judge in vacation bills of exceptions, when signed by the judge, they must be certified to the clerk of the court, who must enter them upon the order book of the court before they become a part of the record of the case. This holding was made a part of the decision in Craft v. Mann, 46 W. Va. 478,33 S.E. 260.

In Wells v. Smith, 49 W. Va. 78, 38 S.E. 547, Judge Brannon, speaking for the Court, said: "A bill of exceptions executed in term must be noted in the record not later than the term of judgment. If in vacation, it must be executed and certified as executed, and ordered to be made a part of the record by the judge within thirty days after the end of the term of final judgment, and the certificate must be recorded in the law-order book, though such recordation need not be within the thirty days; otherwise, the bill will not be treated as part of the record." In the body of the opinion it is said: "There is no order of the judge in vacation certifying the bills. This is absolutely essential. His certificate in vacation takes the place of the record entry in term, and it has been always held that such record entry in term is indispensible." In Bank v.Wetzel, 58 W. Va. 1, 50 S.E. 886, it was held: "When a judge in vacation makes an order under section 9, chapter 131, Code, 1899, showing that he has executed a bill of exceptions, and so certifies it to the clerk, the clerk must record the order in the law-order book and attest it; but it is not necessary that the bill, or any part of it, be literally recorded in said book." In Jones v. Harmer, Admr., 60 W. Va. 479, 55 S.E. 657, this Court said: "Under Section 9, Chapter 131, Code, 1906, a bill of exceptions signed by a judge in vacation within thirty days after the adjournment of the term is not a part of the record, unless the judge also certified the bill, and the order certifying it was recorded." In State v. Blair, 63 W. Va. 635,60 S.E. 795, it was held: "A bill of exceptions to become a part of the record must, if made in term, be plainly recognized by the record as such; and, if made in vacation, within the time allowed by law, must be certified by order duly entered of record as required by statute", citing in support of this statement Wells v. Smith, supra. In Shepherd v. Adams ExpressCo., 65 W. Va. 602, 64 S.E. 720, the holding was: "When a judge executes a bill of exceptions within thirty days after term, he must send it to the clerk accompanied by his certificate to the clerk certifying it as executed by him, and the clerk must record the certificate in the law-order book under the caption of the case, to make the bill a part of the record." InState v. Yoes, 67 W. Va. 546, 68 S.E. 181, it was held: "Though bills of exception be settled and signed in due time, they are not parts of the record, unless made so by a certificate or an order, entered upon the record.", thus indicating that in some cases a certificate would be sufficient. In DeFroscia v. N. W. R. R. Co., 68 W. Va. 136, 69 S.E. 1008, it is stated in the body of the opinion: "The vacation order of the judge certifying to the clerk, as required by statute in such case, is wanting. The bill of exceptions taken in vacation avails nothing — does not become a part of the record — without this order of certification made within thirty days", citingState v. Blair, supra, and Wells v. Smith, supra. In Miller v.Starcher, 86 W. Va. 90, 102 S.E. 809, this Court said: "A bill of exceptions containing a certificate of the evidence, though signed by the trial judge, does not become a part of the record so as to be considered on a writ of error, if done in vacation, without an order signed by the judge within thirty days after the adjournment of the term at which final judgment was entered", citing State v. Yoes, supra, and DeFroscia v. N. W.R. Co., supra, both of which cases, as I understand recognize the use of the certificate. In Hall v. Shelton, 93 W. Va. 592,116 S.E. 12, it was held: "Though a bill of exception be made up and signed by the trial judge within thirty days after the adjournment of the term at which the trial was had or final judgment entered, it does not become a part of the record so as to be considered here upon writ of error unless within the same time an order be also signed and certified to the clerk for record as provided by Section 9 of Chapter 131, Barnes' Code 1923."

It will be observed that some of these cases refer to an order and others to a certificate. In my opinion, the recordination of a certificate, signed by the judge, where bills of exceptions are signed in vacation, should be considered as the order referred to in the cases cited, where that term is used. I can see no good purpose served by entering upon the record the certificate of the judge, and then an additional order.

The certificate need not be signed within the thirty days. InKetterman v. Dry Fork R. R. Co., 48 W. Va. 606, 37 S.E. 683, it was held: "If a bill of exceptions be both signed and certified by the judge within thirty days from the close of a term of court, as it must be, the fact that the certificate of the judge does not reach the clerk, or is not recorded by him, within thirty days, will not vitiate the bill; but the certificate must be recorded in order to make the bill a part of the record." And to the same effect is the holding in Wells v. Smith, supra. Therefore, the statute requiring bills of exceptions to be signed in vacation within sixty days after the adjournment of the term, as the statute now permits, or in some instances the date of the judgment, affords a litigant ample time to see that the certificate of the judge is spread upon the law-order book, which thereafter becomes a part of the record presented to this Court on application for a writ of error. The statute requiring recordation of the certificate being mandatory in form, a litigant could easily compel a clerk, through the processes of mandamus, to record the certificate.

In the case at bar, if the paper attempting to make the evidence and other proceedings on the trial a part of the record is treated as a bill of exceptions under Code, 56-6-35, then I think it was incumbent upon the plaintiff in error to present to us a record showing recordation of the certificate signed by the trial judge. Not having done so, we cannot consider the evidence.

My only purpose in writing this memorandum is to express my view that, had the certificate which the trial court did sign been spread upon the law-order book of the trial court, that would have made the evidence and other proceedings in the trial a part of the record when presented to this Court, even though treated as a bill of exceptions under Code, 56-6-35. I do not think any additional certification or order would have been necessary.

It may be said that the statute requiring the clerk to record the certificate of the court signing the bill of exceptions being mandatory, a litigant should not be penalized through failure of the clerk to perform a statutory duty; but the answer to this is that it was incumbent upon the party seeking relief in this Court, to present a record duly certified from the records of the court below, and when he failed to avail himself of the opportunities he had to secure such legal certification, he cannot ask this Court to correct his mistake.

Of course, as I stated in the beginning, I am of the opinion that the certification of the record made under the provisions of Code, 56-6-36, was sufficient; and even though the paper presented was designated as a bill of exceptions, it is, nevertheless, good as a certificate of the evidence, and has been properly certified.