Ott v. McHenry

BROWN, President.

This is a supersedeas to the circuit court of Marshall county.

It was-an action of ejectment in which there was a verdict by the jury in May, 1860, for the defendants, and a motion by the plaintiffs for a new trial, which the judge took time to consider, but before lie determined the question his office was vacated and another judge succeeded him, who finding the said motion still pending and undetermined, at the May term, 1862, granted a new trial, without hearing or examining the testimony adduced before the jury, there being no note or memorandum of the same filed or preserved; the judge assigning as his reason, that the said motion having been made and entertained, and the change of judges occurring before its determination, made it proper, in his opinion, to grant the new trial without any knowledge of the testimony. To this ruling of the court, granting a new trial, the defendants excepted. At the June term, 1864, another trial was had before another judge and another verdict for the defendants, which was,-on the motion of the plaintiffs, set aside and a new trial awarded.

At the November term, 1864, the plaintiffs moved the court for a change of venue, which was overruled and the plaintiff’s again excepted.

At the June term, 1865$ there was another trial before another judge and another verdict for defendants. Upon this last verdict, the plaintiffs, to sustain the issue on their *78 part, offered to give in evidence a copy of the grant from the commonwealth of Virginia to Woods, under which they claimed the land in controversy; which copy was properly certified by S. H. Parker, register of the land office of Virginia, aseopiedfromtherecord of his office, and had been used on the trial theretofore, both before and after the formation of this State. Upon the motion of the defendants, the court excluded the said copy of the grant from the jury and thereupon the plaintiffs again excepted.

Two points are made by the plaintiffs in error, who were also plaintiffs in the court below, and both arise upon the record. 1st, That the eireuit court erred in overruling the plaintiffs’ motion for the change of venue. 2nd, That the circuit court erred in excluding the said copy of the grant certified fey the register of the land office of Virginia.

In support of the first point, viz: the motion for a change of venae, the plaintiffs proved by the affidavits of Messrs. Jacob, Good, and Hoge, that a fair trial could not, as they believed, be had in Marshall county, from the strong and ■unjust prejudices which existed among the people to the Woods title, under which the plaintiffs claimed; and by the affidavits of three other witnesses, viz. Dickey, Dowler, ■and Conner, all long residents of Marshall county and well acquainted with the people. The plaintiffs further proved the existence of said prejudice, that it was general and from what they heard and believed, it was not probable that a fair trial could be had in the county for the plaintiffs claiming under the Woods title.

Upon this state of facts the court erred in overruling the motion for a change of venue. Dor every man is entitled •to a fair trial, and here it could not be had if the evidence 'is to be believed, and there is nothing to discredit it.

The second point considered is whether the court erred in ■excluding the copy of the grant of Woods, certified by the register of the land office of Virginia.

The reason tor the exclusion, alleged by the court below, .•as stated in the bill of exceptions, viz: that, i-there was no .seal to the said copy of said grant,” was not urged by the *79 counsel for the defendants in error in the argument, but abandoned and need not therefore be now considered. But while the counsel for the defendants all admitted that the said copy of the grant having been copied and certified before the division of the State of Virginia, was properly admitted as evidence to the jury in the trials bad antecedent to the division, and had been admitted without objection on one of the trials since the division, yet, that after the formation of the State of West Virginia the said copy certified aforesaid, was not evidence, upon the hypothesis that an office copy so certified by the register of the Virginia land office, before, as well as since the division, stands upon precisely the same footing with a like copy from the State of Pennsylvania, or any other State or foreign country. But it is a most grave error to forget that the relations of the people of West Virginia, to the government and State of Virginia antecedent to the division, and to the State of Pennsylvania, or any other State, were and are very different indeed. Before the division, the people of West Virginia were as much a part of the State of Virginia, and the government and officers thereof as much theirs, as could be said of any portion of the people, or section of the State; and the official acts of such officers done before the separation are as valid and effective here since that event as before, the laws of Virginia being continued in force here unaffected by the division, where not repugnant to the constitution. The law of evidence is the same now as then, and an office copy good and admissible as evidence before the division, is equally so now. I think the court, therefore, erred in excluding the said official copy of said grant from the jury. And had the case stopped here the judgment should be reversed and the cause remanded. But it is objected for the defendants in error, that the court should go back to the first error, and that the first error was committed in setting aside the first verdict found at the May term, 1860, and granting the plaintiffs a new trial, without a reconsideration of the evidence on which it was founded. It is very clear from the authorities cited in the argument that the plaintiffs *80 might have sought relief in a court of equity against the verdict which the change in the judges prevented their obtaining on the motion for a new trial, but in such case the evidence to authorize the chancery court to grant the relief, would be as necessary, as in the case of the judge who heard the trial; both would determine upon the evidence before the jury, whether or not the verdict should stand, nor could extraneous evidence be admitted to vary the result. The judge in the one case would determine from the evidence as he knew and remembered it to be, and the chancellor in the other would determine the same question from the same evidence as it might be proved to have been. I have no doubt that it was competent for the subsequent judge to hear and determine the motion to set aside the verdict which the preceding judge had left undetermined, but in doing so he must act upon the evidence upon which the verdict was founded, precisely as the chancellor would do, had the relief been sought in that forum. What the evidence was before the jury, may be ascertained by the notes of the judge, who presided at the trial, by his affidavit thereof, by a re-examination of the witnesses, by the affidavits of counsel in the cause, or of others who heard and remembered it, or any other mode that may bo lawful, as in the proof of any other fact. The verdict is the response of the jury upon the facts of the ease in a judicial proceeding. It is the peculiar province of the jury to respond to the facts, and the response thus rendered is valid and binding until set aside for error, and every intendment is in favor of its correctness until the error he made to appear. If verdicts could be set aside without evidence of error, theu the stability of judicial proceedings would be endangered. ,.

As the record shows that the evidence upon which the verdict was founded was not made known to the court by proofs, or otherwise known to him, and not therefore considered, and so expressly stated, I think the court erred in setting aside the said verdict, and as the defendant excepted for that cause, they are entitled to the benefit of the exception. But since the defendants have not appealed nor does *81 this case come within the 9th rule of this court, yet the court will correct the error, which, if not done now, may he again the subject or occasion of appeal in the case; but in thus volunteering the correction for the defendants in error, the court will put the parties upon such terms as will preserve the rights of the parties and secure justice to be done in the premises. It is apparent that if this court reverse the judgment and then enter judgment on the first verdict, without prejudice to the plaintiffs in error to seek relief in equity, by injunction or otherwise, as they may be entitled to do, the plaintiffs might, if driven to another action, be barred by lapse of time or the statute of limitation, unless the defendants were restrained from pleading the same. At least whether such would be the result or not this court will not undertake to determine in advance, but will in extending relief to the defendants, at the same time guard the plaintiffs in error against the contingency referred to, by reversing the erroneous judgment and proceedings back to and including the judgment setting aside the first verdict and awarding a new trial, but will not enter judgment on said verdict as contended for by the defendants in error, but on the contrary, there leave the question on the pending motion for a new trial and remand the cause to the circuit court to be there proceeded with, in conformity with the principles above stated, with costs to the plaintiff1 in error.

The remaining judges concurred in the opinion of Brown, President.

The court entered the following order :

Ordered, That the judgment of the said circuit court of Marshall county, and all the proceedings had in the cause back to and including the judgment rendered at the May term, 1862, setting aside the verdict and awarding a new trial, be, and the same are hereby, reversed and set aside, and the cause remanded to the circuit court aforesaid, to be there proceeded in upon the pending motion for a new trial and such other proceedings as may be had therein, in con *82 formity to the principles stated in a written opinion hied in the cause. And that the plaintiffs in error recover against the defendants in error their costs in this court expended on their behalf,

Judgment Reverse».