Henry v. Davis

¶1delivered the opinion of the Court:

¶2The complaint by appellants’ counsel here is, that the decree of the 3d of May, 3 872, ought to be set aside, and a new trial of the issue directed, because the plaintiff in the supplemental bill, and defendant in the issue, was denied a fair trial of the issue, and through the fault of the judge, who presided at the trial, he did not have the benefit of the exception to the ruling of the judge, in refusing to permit certain letters to be read in evidence to the jury, which the defendant in the issue deemed material to his defense; and that the unfairness of the trial consisted in the refusal of the court to permit said letters to be read in evidence to the jury.

¶3A memorandum in the record states, that “ the defendant, by his attorney, tendered three bills of exceptions to the opinion of the court, which bills are received, signed and sealed by the court, and ordered to be made a part of the record in this cause.” That memorandum was entered on the record on the 7th day of September, 1871, the day the jury rendered its verdict on the issue. Only two hills of exceptions appear in the record, to rulings of the court during the trial; and they are numbered, respectively, two and three. Another bill of exceptions appears, in the record, which is to the judgment of the court, overruling a motion for a new trial of the issue, which motion was not overruled until the said 3d day of May, 1872.

¶4The cause was then appealed to the Supreme Court of Appeals. Before or while pending in that Court no effort seems to have been made, to have the judge, who presided at the trial, sign a bill of exceptions to his ruling, refusing to permit the Davis letters to be read in evidence to the jury. Had the Supreme Court power, to compel the signing of a bill of exceptions in a case of the trial of an issue out of chancery ? In Shanks & McRae v. Fenwick, 2 Munf. 478, there was a queere propounded : “ Whether the Court of Appeals had the *250power, to coerce the judge of an inferior court, to seal and allow a bill of exceptions, regularly tendered and containing the whole truth of the cause.” And also in Vaughan v. Doe on demise of Green, 1 Leigh 316, the quaere was again propounded : “ Whether, if the judge … refuse to certify a proper statement of the facts proved, the party may take an exception for that cause, and appeal from the judgment; or ought to tender a fair and full statement of the facts proved, and upon the judge refusing to certify it, take evidence of its fairness, and then ask the Appellate Court for process, to compel the judge to sign and seal it.” A similar quaere was propounded, in Jackson’s adm’r v. Henderson, &c., 3 Leigh 196. Sec. 9 of chap. 131 of the Code provides, among other things, that “ in a 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 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.”

¶5In Douglass & Woodward v. Loomis, judge, 5 W. Va. 542, this court held, that “neither the Constitution, (which then contained the same provision as to jurisdiction in mandamus, as the present Constitution) nor the statute (which was the same then as now) provides when and in what' case it may be proper or necessary to issue the writ, nor the mode of proceeding to obtain it. In these respects the principles of the common law govern independently of the Constitution or the statutory provisions. Superior Courts, by virtue of their supervisory powers over inferior courts, have jurisdiction to compel by mandamus the judges of such inferior courts, to sign and seal in a proper case bills of exceptions.' This power *251seems to arise by reason of their appellate jurisdiction.”

¶6Syiiaims iWhatever has been the rule in other States, it seems to have been recognized as proper and right for courts in "Virginia and this State, to sign bills of exceptions to their rulings on trials of issues out oí chancery. Stannard v. Graves, 2 Cal. 369; Ford v. Gardner, 1 H. & M. 72; Fitzhugh’s ex’rs v. Fitzhugh, 11 Gratt. 210.

¶7In the last case cited the court held, that upon an issue directed out of chancery, the verdict of the jury is conclusive, where there is no exception, spreading the facts proved upon the record.” Of course it must be understood, that in such a case the issue was properly directed, and there were no erroneous rulings, saved upon the record, which would show that the verdict ought to be set aside.

¶8In the case at bar, when it was before this Court, this principle was recognized^ as this Court passed upon the refusal of the court below to give instructions, which appeared upon the record by bills of exceptions.

¶9Judge Pauli in delivering the opinion of the Court in this case (7 W. Va. 726) said: “The attention of this Court was called during the argument to a memorandum found in the record, that three bills of exceptions were tendered by the defendant to the opinion of the court, and which were received, signed and sealed by the court and ordered to be made a part of the record; two bills appear upon the record, Nos. 2 and 3. The inference is, that the missing bill was not copied into the record, when the same-was made out; if the record is defective, the remedy is by certiorari. This case was submitted without asking for the writ; and the absence of the bill is no ground of complaint. Upon the review of the whole case, the proceedings and evidence, it seems to me, that this court must be satisfied with the verdict, as furnishing the facts for its decision. The parties, so far as it appears, have submitted to the jury all the evidence within their power; no sufficient exception has been taken by either party, during the progress of this trial ; the finding has been approved by the chancellor, who *252presided as a court of law, and. who had all the advantage of seeing the witnesses and observing the circumstances and influences, under which they testified.”

¶10Syllabus 2 If the fact existed then, that the judge, who presided at the trial of the issue, and the bill says it did then exist, refused to sign a proper bill of exceptions to his ruling, refusing to permit the Hostetter letters to be read to the jury, it was the defendant’s duty then to have applied to the court for a mandamus, to compel the said judge to sign such bill of exceptions; if he had signed it, then it would have been a part of the record, and this Court .would have passed upon the ruling of the said judge, and the defendant would have received the full benefit of his exception. This he declined to do; and for this failure so to do, says, that it would not have benefited him, as it is probable, that upon the answer of the judge the rule for a mandamus nisi, would have been discharged. What right has he to suppose so ? It would not, under the authorities, have been discharged, unless he signified his willingness to sign a bill, stating the facts, or showing to the court, that it was not proper for him to sign it under the circumstances, or that the bill tendered to him did not state the facts. And, if he did sign a bill stating the facts fairly, or in .his return showed, that the bill tendered to him did not fairly state the facts, the rule, under the authorities, ought to have been discharged.

¶11Syllabus 3 This court cannot presume, that the judges of the circuit courts are either corrupt, or incompetent to discharge their duties. On the contrary we presume, that they are both honest and capable; and when a judge, under the sanction of his official oath, returns an answer to a rule for a mandamus nisi, which shows, that he ought not to have signed the bill of exceptions tendered and that he has, or will sign a proper bill of exceptions, fairly stating the facts, the appellate court will take that statement to be true, and thereupon discharge the rule. There was no attempt made in this court to compel the *253said judge to sign the bill of exceptions prepared by counsel, or any other bill, and upon the law as it stood this court affirmed the decree. It was held in Dillon v. Parker, 11 Price 53, that “ a party bringing a writ of error, and thus severing the record, before he has procured the judge’s seal to a bill of exceptions tendered by him at the trial, on the rejection of his evidence, waives by so doing the bill of exceptions allowed by the judge.”

¶12In Evans v. Norris, 6 Mich. 69, it was held, that “where a copy of a bill of exceptions, instead of the original, was sent up from the circuit court, in return to the writ of error, and three terms have elapsed, since the return of the writ, and issue in error has been joined, without any notice being taken of the irregularity, and no explanation is made of the delay, the court'will not interfere, to require the original bill to be sent up.”

¶13The defendant' having failed to complete his record by having the exceptions signed by the judge, by mandamus, or otherwise; and submitting to have his case heard in the appellate court on the record before it, and the decree of the circuit court, rendered on the issue out of chancery, being affirmed, all the matters pn issue.jin the ease are res judicata.

¶14Svllabus •[ A fact, which has been directly tried and decided by a court of competent jurisdiction, cannot be controverted . , , ... , again between the same parties m the same or any other court. But, to make it res judicata., it must have been directly, and not collaterally, in issue in the former suit. The W. M. & M. Co. v. Va. C. C. Co., 10 W. Va. 250; Coville & Garher v. Gilman et al. infra.

¶15The fact in issue, that the said Henry G. Davis, at the time of entering into the contract of the 19th of July, 1865, with the said Eugene Henry, had knowledge of, and was fully informed as to, the extent of the fraud practiced upon him by the said Eugene Henry, which induced him to enter into the said contract of the 9th of March, 1865,” as ascertained by the jury, and the *254further fact, found by the decree, which Avas based upon said verdict, that said Henry Avas liable on, and should perform said contract of July 19, 1865, Avhich Avas affirmed by the Supreme Court of Appeals, is res judicata. Hoav then can it be interfered Avith ?

¶16Syllabus 5 It is earnestly insisted by counsel for appellant, that, under our Constitution it being the duty of the court to consider and decide every point, fairly arising upon the record, and gh' e its reasons therefor in Avriting, unless every point is so considered, and the reasons thérefor given in Avriting, those points, which are not specially mentioned in the opinion of the court, and no reason given in Avriting for the decision thei’eof, are not adjudicated, and may be afteiuvards inquired into, although invmlved in the issues in the case. Noth withstanding that clause in the Constitution, if the points are involved in the issue, they are res judicata, although not mentioned in the opinion of the court, or noticed by counsel on either' side. That clause of the Constitution is merely directory to the court, and it ought to be folloAved ; but it does in no Avise change the common laAV rule, as to the doctrine of res judicata. The contrary doctrine Avould lead to endless litigation ; and no suitor could know, when his controversy Avas tenninated. There Avould be anything but repose, in such a construction of the Constitution as that. Can this decree, affirmed as it is, be disturbed ?

¶17Syllabus 6 Syllabus 7 The decree of the Court of Appeals upon a question, decided by the court beloAV, is final and irreAmrsible; and upon a second appeal in the cause, the question, decided upon the first appeal, cannot be revieAved. In such case, the conclusiveness of the decree of the Court of Appeals is the same, Avhether the first appeal Avas from a final, or interlocutory, decree of the court beloAV. 'When the Court of Appeals makes a decree, and sends the cause back for further proceedings, there cannot be a bill of revieAV, to correct the decree of the Court of Appeals for error apparent. White v. Atkinson, 2 Call 376; Prices v. Campbell, 5 Call 115; McCall v. Graham and Beall, *2551 H. & M. 13; Campbell v. Price &c., 3 Munf. 227; Bank of Virginia v. Craig, 9 Leigh 399; Tonner v. Lurie’s adm’r, 9 Leigh 262; Newman v. Mollohan, 10 W. Va. 488; Western M. & M. Co. v. Va. C. C. Co., 10 W. Va. 250 Pinkney v. Jay et al., 12 Gill & J. 69.

¶18llal)UB 8 When the Supreme Court of Appeals has executed its power, in a case before it, and its final decree or judg-s ment requires some further act to be done, it cannot issue an execution, but will send its decree to the court below to be executed. Whatever was before the court, and disposed of, is considered finally settled. The inferior court is bound by the decree, as the larv of the case and must carry it into execution according to the mandate. They can examine it for no other purpose than execution, or give any other or further relief, or review it on any matter, decided on appeal, for error apparent, or intermeddle with it, further than to settle so much, as has been remanded. Sibald v. The United States, 12 Pet. 488: Southard et al. v. Russell, 16 How. 547; Ex parte Dubuque & Pacific R. R., 1 Wall. 69.

¶19syllabus 9 And by error apparent is meant, such as appears upon the face of the proceedings, and that includes all, that was involved in the issue; but a bill of review, or supplemental bill in the nature of a bill of review, lies for after-discovered evidence, subject to the rules applicable thereto. It is not pretended, that in this cause there was any after-discovered evidence. The bill is filed for the purpose of correcting error, alleged to have been committed during the trial, after a decree is affirmed by the Appellate Court. It is clear, from all the authorities, that this cannot be done for errors apparent. No case has been cited in argument; and it is believed, that no case can be found, that decides, where an issue has been tried by a jury and a verdict rendered, and a decree or judgment rendered on the verdict, and the judgment or decree on writ of error or appeal affirmed by an Appellate Court, that such decree or judgment can be reviewed for any errors, committed by the court during the trial *256of the issue, or at any other time, before the j ndgnient “ or decree was appealed from.

¶20An original bill, to impeach a judgment or decree for fraud committed by the eburt, is an unheard of proceeding. The bill, here filed, is not of such a character.

¶21But it is insisted by counsel for appellant, that, even after a decree or judgment has been affirmed by the Appellate Court, it may, upon bill, be set aside, where it appears, that the trial was an unfair one; and the case of Price’s ex’r v. Fuqua’s adm’r, 4 Munf. 68, is cited to sustain the position. That case was a bill of injunction, to stay proceedings on the judgment at law, in favor of Warren, administrator of Fuqua, against Price’s executor, which was affirmed by the Court of Appeals, as reported in 1 H. & M. 385. The equity stated in the bill, as appears from the report of the case, was “ that the complainant had been uniformly advised by his counsel, that he need not make any defense, except that furnished by the antiquity of the bond; the legal presumption being, that the debt was paid, unless that presumption should be repelled by evidence on'the part of the plaintiff; that no such evidence was offered at the trial; but the verdict was found in consequence of evidence, given in the jury room, the complainant therefore conceived, that he had not had a fair trial of his cause; that if he had been told, it was necessary or proper, he could have produced evidence on his part, to fortify the presumption, on which alone he- had rested his defense ; he could have proved, and was still able to prove, that his testator was abundantly able, at any time during the last twenty years of his life, to have discharged the debt ; that Fuqua was a near neighbor to the said testator, was in very embarrassed circumstances for many years, sold his property for payment of his debts, and applied to testator, as a friend, to attend the sale and encourage it by bidding.

¶22The complainant was himself present, at the time when his testator made an application to Fuqua for the *257bond; and the said Fuqua, after making some difficulty about finding it, promised, that it never should be brought against him.

¶23The bill further stated, that Fuqua had;brought several suits on bonds of old date, which were proved to have been paid, “ and that the complainant, in the course of four or five weeks past, in examining the papers of his testator, had found a receipt, bearing date the 1st of May, 1775, for £49, 15s. 9d. paid to said Fuqua. He therefore prayed, that a new trial of the suit at law be granted him.”

¶24This is all the reporter gives of the bill. The cause came on to be heard in the court below on the 21st of September, 1811, when the Chancellor was of opinion, “that, so far as the law of this case has been settled in 1 H. & M. 385, it should be the rulejof this court; and the allegation, that the plaintiff had uniformly been advised by his counsel not to make any defense in the suit at law, except that furnished by the antiquity of the bond, upon the authority of Lynn et al. v. Montague, 4 H. & M. 180, might have been the ground of motion for a new trial, but it was not; nor is any reasonable excuse offered for this neglect. But again : as the plaintiff had two grounds of defense, and made his election by the advice of his counsel, he should abide the consequence thereof; for he was grossly negligent, as he did not go prepared to defend himself by all the reasonable means in his power; and it is a little remarkable, that, while he was endeavoring to avail himself of a neiv trial upon another ground, the ill advice of his counsel was not resorted to.” It was therefore decreed, that the bill be dismissed; to which decree a writ of supersedeas was awarded. Munford insisted, that the mistakes, into which the party was accidentally led by the advice of his counsel, together with the unforeseen circumstance of the evidence being given in the jury room, were sufficient reasons, to entitle him in equity to a new trial. At any rate, a credit should have been *258given for the amount of the receipt, dated May 1, 1775, ' which was not found by the complainant until after the judgment at law. There was no opinion delivered in the case, the entry is, as follows :

“Friday the 12th March, 1813, Judge Roane pronounced the court’s opinion, that the decree be reversed, and the case remanded to the Supreme Court of Chancery, with directions to that court, to order a new trial of the issue at law in the Supreme Court for the county of Prince Edward.”

¶25The report of this case is so vague and unsatisfactory, and the court having given no opinion therein, it is impossible to say, upon what ground the decree of the court below was reversed. It certainly could not have been, on the ground that the party was misled as to a question of law by advice of his counsel. If that was ground for new trials to be granted by courts of equity, the consequence would be alarming indeed. It may have been on the ground of the after-discovered evidence of the receipt, or the evidence given in the jury room ; and the bill may have contained the proper allegations on that subject to have justified a new trial. It would not do to bo driven from the well beaten track, on the subject of granting new trials in equity, by such a vague and unsatisfactory decision.

¶26In Campbell’s ex’r v. Campbell’s ex’rs supra, it was held, that when the Court of Appeals makes a decree, and sends the cause back for further proceedings, there cannot be a bill of review to correct the decree of the Court of Appeals for error apparent on the face of the record ; but there' may be such a bill, to correct the decree on the ground of after-discovered evidence.

¶27But to sustain a bill' of review in such a case, the greatest caution should be observed; and the new matters, to be sufficient ground for the reversal of the decree, ought to be very material, and newly discovered, and unknown to the party seeking the relief, at the time the decree was rendered, and such as could not have been *259discovered by the use of reasonable diligence.

¶28The bill here makes no such case as this; and it is not pretended that all the matters set up in the bill were not fully known to the party filing it, at the time the decree was rendered ; but the reverse appears to be true.

¶29The case of Amble v. Wyld, 2 Wash. 47, is not in point, as the judgment of the court below had not been affirmed by the Court of Appeals.

¶30The demurrer to the bill ought to have been sustained and the bill dismissed. "The decree of the court was right. It would be lamentable indeed, if all the cases, which for the last five years have been passed upon by the Supreme Court of Appeals, and decrees and judgments by said court entered therein, could be reversed or set aside by the inferior courts, or by the Supreme Court of Appeals itself, because in the bill it was alleged and proven, that,- by reason of the acts of the circuit judge, a fair trial had not been had. Better, far better, that in certain individual cases by such means injustice has been done, than to adopt a rule, that would throw our whole judicial system into inextricable confusion; and suitors, until the repose of the statute of limitations came, could never be relieved of their anxiety. Litigation would never end; and the whole country would suffer.

¶31As to this particular case injustice may have been done. While counsel for appellant insist, that the record cannot be contradicted by parol evidence, yet bv the same sort of evidence they sought to amend the record. The record by such means can neither be amended nor contradicted. If it could, it would appear in this case, that the letters, which appellant’s counsel say were not permitted to be read to the jury, and by which action of the court such gross injustice was perpetrated against the appellant, were in fact read to the jury by the appellant himself. The great injustice therefor suffered by him, was inflicted by a jury of his peers upon all the evidence, he had to offer. I have not *260thought it proper, in this case, to discuss, whether the letters were proper evidence.

¶32The bill filed, by whatever name it may be called, was properly dismissed, as it showed on its face, that it contained no equity.

¶33The decree of the circuit court of Wood county, is affirmed, with costs and $30.00 damages.

¶34Judo-meet Affirmed.