Lazzell v. Mapel

1 W. Va. 43

Opinion

Brown, J.,

delivered the opinion of the court.

This is an action of debt, prosecuted by the defendant in error against the plaintiff’s in error and Martin N. Rymer, founded on a promissory note for $1,500. The summons having been served on all the defendants except Rymer, an office judgment was had against them, which they set aside in October, 1859, by filing the plea of payment and the plea of usury; on which issues were joined.

The summons having been returned not found, as to the eaid Rymer, an alias summons was awarded against him, which being returned executed, an office judgment was had against him at the August rules 1862, and which not being set aside by an issuable plea at the next succeeding term of the court, became a final judgment as of the last day of that term, to wit, the September term, 1862. The cause was continued at that term, and also at the February term, 1862. At the April term, 1862, a jury was sworn to try the issues, and not being able to agree was discharged On the 7th of July, 1862, the plaintiff in the court below, filed interrogatories to the defendant Rymer, touching the consideration of the note sued upon; and he answered, that it was for money borrowed by him, and that his co-defendants Lazzell, became his sureties in said note, and that there was no usury in the transaction.

At the April term, 1863, a jury was again sworn to try the issues, when a verdict was rendered for the plaintiff, and judgment rendered upon the verdict. Upon the trial, the plaintiff offered to read to the jury as evidence, the said interrogatories and Rymer’s answers thereto. The defendants Lazzell, objected, and the court permitted them to be read as evidence against Lymer alone, to which, ruling of the court the defendants Lazzell excepted.

The defendants Lazzell, then moved the court to instruct the jury, “that they should not regard the said answers as evidence against any of the defendants in the cause.”

. But the court having before instructed the jury, at the in-stance of the said defendants Lazzell, that the said answers were evidence against Lymer alone, and not against them, refused to give the said last mentioned instruction; and thereupon the defendants Lazzell again excepted: which, constitutes the defendants 4th exception.

The defendants Lazzell then obtained a writ of supersedeas to said judgment, and assigned the following errors: 1st, That the court erred in permitting the interrogatories and answers to be read as before stated. 2nd, In refusing to give the 4th instruction asked by the defendants Lazzell, mentioned in their 4th bill of exceptions.

The court is of opinion, that the circuit court committed no error of which the plaintiffs in error could justly complain, in admitting the interrogatories and answers to go to the jury as evidence against the said Lymer. And this court is further of opinion, that the said circuit court did not err in refusing to give the 4th instruction, mentioned in the 4th exception, because it appears from said exception that the court had, at the instance of the said defendants Lazzell, instructed the jury that said answers were not evidence against the said defendants Lazzell, but wore evidence against the said Lymer alone.

JudgMENt Affirmed.