Furbee v. Shay

34 S.E. 746, 46 W. Va. 736, 1899 W. Va. LEXIS 98

• Court: West Virginia Supreme Court
• Decided: November 11, 1899
• Status: Published

Opinion

Dent, PresideNt:

This is an action of debt originally instituted by Fur-bee Bros, and Smith against Shay & McMullen, resulting in a judgment in favor of the plaintiffs against the defendants for the sum of one hundred and forty-one dollars and twenty-five cents. The defendants appealed to the circuit court of Tyler County, wherein the same result was reached. They then came to this Court, and here rely on the following errors:

First, that the jury was sworn to try the “matters in difference” before the issue was made up. This question has been settled by this Court in the case of White v. Emblem, 43 W. Va. 819, (28 S. E. 761). Also see Griffin v. Haught, W. Va. (31 S. E. 957). In actions originating in a justice's court, when there has been a fair trial on the merits of the controversy, no mere technical objection to the pleadings and issue, not prejudicial to the party complaining, will be deemed sufficient cause for reversing the judgment.

Second, that the circuit court erroneously instructed the jury, and refused to give a proper instruction asked by the defendants, or to set aside the verdict of the jury as contrary to the law and the evidence. These alleged errors depend entirely on the alleged bills of exception, none of which are properly made parts of the record, and therefore they cannot be considered by this Court. Criffith v. Corrothers, 42 W. Va. 59, (24 S. E. 569); Craft v. Mann, 46 W. Va. 478, (33 S. E. 260). The record disclosing no error prejudicial to the defendants, the judgment is affirmed.

Affirmed.