bill exception in West Virginia

1970This is the third syllabus point of the recent case of Montgomery v. Montgomery, 147 W.Va. 449 , 128 S.E.2d 480 : "The failure to properly obtain a bill of exception where required within the allowed time or an extension thereof is jurisdictional and may be raised by this Court on its own motion." Reference is also made to the many cases cited in the opinion of that case to that effect.

1970This is the third syllabus point of the recent case of Montgomery v. Montgomery, 147 W.Va. 449 , 128 S.E.2d 480 : "The failure to properly obtain a bill of exception where required within the allowed time or an extension thereof is jurisdictional and may be raised by this Court on its own motion." Reference is also made to the many cases cited in the opinion of that case to that effect.

1966State v. Consumers’ Gas and Oil Company, et al., 130 W.Va. 755 , 45 S.E.2d 923 .

1966State v. Consumers’ Gas and Oil Company, et al., 130 W.Va. 755 , 45 S.E.2d 923 .

1893In cafes where it may be important to give time un•til the next term to prepare the bill of exception, the case should be kept open, and the judgment should not be entered until the next term.” Following this ruling, it was held by that court, in the case of Page v. Clopton, 30 Gratt. 415 : “The usual practice is to give notice of the exception at the time the decision is made, and reserve liberty to draw up and present the bill for settlement and signing either during the trial, or after the trial, and during the term, as may be allowed by the court; but it must be-signed during the term at w

1887Formerly there was a diversity of opinion as to the proper remedy, when an inferior court refused to sign a bill of exception; and the Court, of Appeals of Virginia never decided this question till 1878 in Page v. Clopton, 30 Gratt. 415 .

1966It was specifically stated in the case of State v. Workman, 141 W.Va. 482 , 91 S.E.2d 329 , at page 487, that a stay of execution of the sentence or judgment is not equivalent to an extension of time to obtain a bill of exception.

1966It was specifically stated in the case of State v. Workman, 141 W.Va. 482 , 91 S.E.2d 329 , at page 487, that a stay of execution of the sentence or judgment is not equivalent to an extension of time to obtain a bill of exception.

1964This matter was discussed by this Court in the case of Seibright v. State, 2 W.Va. 591, 593 , which was decided in 1867, wherein it is stated: "The object of a bill of exception is to spread upon the record and preserve the facts of the case, that the party excepting may have them, and the court's action upon them reviewed in the appellate court." The purpose of bills of exceptions was again clearly defined in the case of State ex rel.

1964Alderson v. Cunningham, 33 W.Va. 607 , 11 S.E. 76 , as follows: "* * * we can only consider the legal and proper office of a bill of exceptions, which is to obtain relief by an appeal to a higher judicial tribunal of the state." The following statement *734 relative thereto is contained in 8 M.J., Exceptions, Bill of, § 3: "The office of a bill of exceptions is to call the attention of the court to some specific matter as to which error is claimed.

1964Alderson v. Cunningham, 33 W.Va. 607 , 11 S.E. 76 , as follows: "* * * we can only consider the legal and proper office of a bill of exceptions, which is to obtain relief by an appeal to a higher judicial tribunal of the state." The following statement *734 relative thereto is contained in 8 M.J., Exceptions, Bill of, § 3: "The office of a bill of exceptions is to call the attention of the court to some specific matter as to which error is claimed.

1964Davis v. Phillips, 140 W.Va. 280 , 83 S.E.2d 699 .

1964Davis v. Phillips, 140 W.Va. 280 , 83 S.E.2d 699 .

1964Grottendick v. Webber, 134 W.Va. 798 , 61 S.E.2d 854 ; Montgomery v. Montgomery, W.Va., 128 S.E.2d 480 ; Lester v. Rose, W.Va., 130 S.E.2d 80 .

1964Grottendick v. Webber, 134 W.Va. 798 , 61 S.E.2d 854 ; Montgomery v. Montgomery, W.Va., 128 S.E.2d 480 ; Lester v. Rose, W.Va., 130 S.E.2d 80 .

1964Grottendick v. Webber, 134 W.Va. 798 , 61 S.E.2d 854 ; Montgomery v. Montgomery, W.Va., 128 S.E.2d 480 ; Lester v. Rose, W.Va., 130 S.E.2d 80 .

1962Va. 448 , 40 S. E. 2d 899 ; In re Baxter Estate, 94 Mont. 257 , 22 P. 2d 182 ; State v. Bradshaw Land & Livestock Co., 99 Mont. 95 , 43 P. 2d 674 .

1962Va. 448 , 40 S. E. 2d 899 ; In re Baxter Estate, 94 Mont. 257 , 22 P. 2d 182 ; State v. Bradshaw Land & Livestock Co., 99 Mont. 95 , 43 P. 2d 674 .

1962Va. 448 , 40 S. E. 2d 899 ; In re Baxter Estate, 94 Mont. 257 , 22 P. 2d 182 ; State v. Bradshaw Land & Livestock Co., 99 Mont. 95 , 43 P. 2d 674 .

1962Va. 448 , 40 S. E. 2d 899 ; In re Baxter Estate, 94 Mont. 257 , 22 P. 2d 182 ; State v. Bradshaw Land & Livestock Co., 99 Mont. 95 , 43 P. 2d 674 .

1962Extensions to obtain a bill of exception may be initially granted by the trial court for a period of 90 days from the time the judgment was entered which, in effect, extends the time for obtaining said bill of exception for a period of 30 days. 4A C.J.S., Appeal and Error, Section 862; State v. Wooldridge, 129 W.

1962Va. 448 , 40 S. E. 2d 899 ; In re Baxter Estate, 94 Mont. 257 , 22 P. 2d 182 ; State v. Bradshaw Land & Livestock Co., 99 Mont. 95 , 43 P. 2d 674 .

1950Coffman v. Hedrick, 32 W.

1945Va. 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.

1941Cresap v. Brown, 82 W.

1928Dudley v. Barrett, supra. We think the identification is beyond doubt.

1908In Pegram v. Stortz, 31 W.

1907As pertinent to the question of waiver of error by the defendant, arguendo, we are cited to Danks v. Rodeheaver, 26 W.

1905Some of the oases holding that amendments cannot be made after the expiration of the time given by statute for taking bills of exceptions are: Walton v. U S., 9 Wheat. 651 ; Chopman, v. Holding, 54 Ala. 61 ; Wallahan v. The People, 40 Ill. 103 ; Seig v. Long, 72 Ind. 18 ; Adkinson v. Stevens, 30 Ky. 237 ; Police Jury v. Gardiner, 2 Rob.

1905Some of the oases holding that amendments cannot be made after the expiration of the time given by statute for taking bills of exceptions are: Walton v. U S., 9 Wheat. 651 ; Chopman, v. Holding, 54 Ala. 61 ; Wallahan v. The People, 40 Ill. 103 ; Seig v. Long, 72 Ind. 18 ; Adkinson v. Stevens, 30 Ky. 237 ; Police Jury v. Gardiner, 2 Rob.

1905Some of the oases holding that amendments cannot be made after the expiration of the time given by statute for taking bills of exceptions are: Walton v. U S., 9 Wheat. 651 ; Chopman, v. Holding, 54 Ala. 61 ; Wallahan v. The People, 40 Ill. 103 ; Seig v. Long, 72 Ind. 18 ; Adkinson v. Stevens, 30 Ky. 237 ; Police Jury v. Gardiner, 2 Rob.

1905Some of the oases holding that amendments cannot be made after the expiration of the time given by statute for taking bills of exceptions are: Walton v. U S., 9 Wheat. 651 ; Chopman, v. Holding, 54 Ala. 61 ; Wallahan v. The People, 40 Ill. 103 ; Seig v. Long, 72 Ind. 18 ; Adkinson v. Stevens, 30 Ky. 237 ; Police Jury v. Gardiner, 2 Rob.

1905Some of the oases holding that amendments cannot be made after the expiration of the time given by statute for taking bills of exceptions are: Walton v. U S., 9 Wheat. 651 ; Chopman, v. Holding, 54 Ala. 61 ; Wallahan v. The People, 40 Ill. 103 ; Seig v. Long, 72 Ind. 18 ; Adkinson v. Stevens, 30 Ky. 237 ; Police Jury v. Gardiner, 2 Rob.

1903Va. 329 ; ( 34 S. E. 819 ), syl. pt. 1: “When a case is heard, legally on a bill and answer (the answer denying the material allegations of the bill) and general replication exhibits, and upon a motion to dissolve an injunction, in the absence of evidence tending to prove the material allegations of the bill it is error in the court to refuse to dissolve the injunction.” From the allegations and prayer of the bill it clearly appears that the object and purpose of the suit and proceeding was to wrest the possession of the property from the defendant and to hold him in arrest, if need be, until

1902This view is strengthened by the decisions of our own Court which holds in two cases, exactly like this one, that, “If the. court has no jurisdiction, it will dismiss a bill on the hearing, although there was no demurrer to the bill.” Cresap v. Kemble, 26 W.

1902Va. 603 ; Watson v. Ferrell, 34 W.

1899Va. 101 , in which this Court holds that: “When a cause is regularly heard on a bill and answer (the answer denying the material allegations of the bill) and-general replication, exhibits, and upon a motion to dissolve an injunction, in the absence of evidence tending to prove the material allegations of the bill it is error in the court to refuse to dissolve the injunction, and refer the cause to a commissioner to take the account prayed in the bill.” See, also, Radford's Ex'rs v. Innes' Ex'x. 1 Hen. & M. 7 ; Shonk v. Knight, 12 W.

1898In Perry v. Horn, 22 W.

1893In the case of Wickes v. Railroad Co., 14 W.