Green, Judge,
announced the opinion of the Court:
The first question to be determined in this case, is what portion of the record, which has been certified by the clerk of the circuit court, really constitutes a part of the record oí this case and is to be read and considered by us.
The counsel for the plaintiffs in error insists, that upon the case, as we have stated it, the four bills of exception, which constitute nine-tenths of the record certified, are really a portion of the record to be considered by us.
On the other hand the counsel for the defendant in error insists, that the four bills of exception constitute no part of the record and cannot be looked at or considered by this Court.
It is unnecessary however for us to determine this question, for the reasons .which we will presently state. The next enquiry is: Are the entries made according to the certificate of the clerk by the judge, on his private docket opposite this case, and similar entries made by the former clerk of the circuit court of Kanawha on his docket of cases, and which indicate, that a demurrer to the declaration was filed, as also a plea of not guilty, but which entries were never made on the record-book, to be regarded now as a part of the record in this case ?
There are no authorities cited by' the counsel of the defendants in error to justify us in regarding these private entries of the clerk and judge, as parts of the record; and I presume none eau be found; for it seems obvious, that they can not be so regarded. The counsel of the appellee did not ask, that time should bo given by us to permit au application to be made to the circuit court of Kanawha, to make those entries on the record book nunc pro tunc and thus endeavor to make them a part of the record, and we presume this request was not made, because it seems to be obviously impossible that such entries could be made at this time, to operate nunc pro tunc.
In Sydner v. Burke, 4 Rand. 163, Judge Cabell says “The counsel for the appellee has exhibited the transcript of the [158]*158record of an order of the superior court, made at a term subsequent to that at which the judgment ivas rendered, showing that the court received the evidence of the clerk, that a plea had been regularly filed, and that issue was joined thereon, and directing the plea to be entered nunc pro tunc. But we cannot regard this transcript as any part of the record. In the case of Vaughan & Field, executors of Field v. Freeland, reported in a note to 2 H. & M. 477, this Court decided, that it was erroneous in the district court, after the term to amend the record, even by the written minutes of the clerk. It would be much more improper to allow such amendment founded on the mere recollection and oral testimony of the clerk.”
In the case before us, the private memorandum of a judge no longer in office, and the docket of a clerk no longer a clerk, would have to be resorted to to make an order of the filing of a plea in this case nunc pro tunc. This clearly can not be done. We must therefore consider, that in the trying of this ejectment case, no plea was filed in the circuit court, and of course no issue was joined, and yet a jury was empaneled and sworn to try the issue joined, and they found a verdict for the plaintiff for the land in the declaration mentioned, and that he was entitled to this land in fee simple! On this verdict so procured, the court rendered on December 20, 1875, a judgment, that the plaintiff recover of the defendants the possession of the premises described in this verdict and his costs, and writ of possession was awarded him.
This is the judgment to which a writ of error has been granted; and it is clear, that it must be reversed without any regard to the merits of the case as set out in their bill of exceptions, for it is very well settled, that in no case either civil or criminal, can the court direct the empaneling of a jury and the trial of a case when no issue has been made up; and if this be done, as it was done in this case according to the record, the court below could not properly enter up any judgment on this verdict of the jury so rendered.
The cases are numerous both in Virginia and in this State, where verdicts and judgments have been set aside by the appellate court, only because the verdict was rendered when no issue had been joined. See Stevens v. Taliaferro, 1 [159]*159Wash. 155; Taylors v. Houston, 2 H. &. M. 161; Kerr v. Dixon, 2 Call 379; Williamson’s Adm’r v. Bennett, 3 Munf. 316; Sydnor v. Burke, 4 Rand. 161; McMillion v. Dobbins, 9 Leigh 422; Rowans v. Givens, 10 Gratt. 250; B. & O. Railroad Co. v. Gettle, 3 W. Va. 376; B. & O. Railroad Co. v. Christie, 5 W. Va. 325; Gallatin’s heirs v. Haywood’s heirs, 4 W. Va. 1; B. & O. Railroad Co. v. Faulkner, 4 W. Va. 180; State v. Conkle alias Swank, 16 W. Va. 736; State v. Douglas, 20 W. Va. 770.
These decisions were rendered in a great variety of cases. In actions of debt, detinue, trespass on the case and assump-sit, and in writs of right and indictments for felonies. None of these however happen to be actions of ejectment; and it is now claimed by counsel for the defendants in error, that though in all other cases, either criminal or civil, the judgment of a court based on the verdict of a jury professedly on the issue joined, where in fact no issue appears by the record to have been joined, must be reversed by the appellate court. Yet such a judgment ought not to be reversed in an ejectment cause; because by the law Code of W. Va. ch. 90, § 13, p. 519, no other plea can be filed in an ejectment case except the plea of “not guilty;” and therefore it must be conclusively presumed that the jury were really sworn to try the issue on the plea of not guilty, though no plea was put in.
It is said, the only issue which could be made up, is the one actually tried, and it would be too technical to reverse, because the formality of entering the plea of not guilty was omitted. But these cases abundantly show, that the court has not reversed judgments entered upon such verdicts, because there was any doubt as to the real issue which the jury tried, nor because the defendant might have made up some other issue, if he had pleaded. The reasons for these decisions are entirely different from what this argument presumes. The real ground on which these decisions rest is, that by the common law the court has no right to make up the issue and empanel a jury to try it; but the parties by their pleadings must first come to an issue, and then it is tried by a jury. When therefore the record shows, that the parties by their pleadings have not come to any issue, but nevertheless the record shows that the issue was tried, this issue must either have been [160]*160illegally made up by the eourt or by a blunder it must have been assumed to have been made up by the .parties, when in fact it was not.
In some ot the cases we have cited, the record showed distinctly what was the exact issue tried by the jury, and also that the .verdict was distinctly responsive to such issue; and that it was the only issue the parties in the particular case could have made, had they by the pleadings made any issue.
Free access — add to your briefcase to read the full text and ask questions with AI
Green, Judge,
announced the opinion of the Court:
The first question to be determined in this case, is what portion of the record, which has been certified by the clerk of the circuit court, really constitutes a part of the record oí this case and is to be read and considered by us.
The counsel for the plaintiffs in error insists, that upon the case, as we have stated it, the four bills of exception, which constitute nine-tenths of the record certified, are really a portion of the record to be considered by us.
On the other hand the counsel for the defendant in error insists, that the four bills of exception constitute no part of the record and cannot be looked at or considered by this Court.
It is unnecessary however for us to determine this question, for the reasons .which we will presently state. The next enquiry is: Are the entries made according to the certificate of the clerk by the judge, on his private docket opposite this case, and similar entries made by the former clerk of the circuit court of Kanawha on his docket of cases, and which indicate, that a demurrer to the declaration was filed, as also a plea of not guilty, but which entries were never made on the record-book, to be regarded now as a part of the record in this case ?
There are no authorities cited by' the counsel of the defendants in error to justify us in regarding these private entries of the clerk and judge, as parts of the record; and I presume none eau be found; for it seems obvious, that they can not be so regarded. The counsel of the appellee did not ask, that time should bo given by us to permit au application to be made to the circuit court of Kanawha, to make those entries on the record book nunc pro tunc and thus endeavor to make them a part of the record, and we presume this request was not made, because it seems to be obviously impossible that such entries could be made at this time, to operate nunc pro tunc.
In Sydner v. Burke, 4 Rand. 163, Judge Cabell says “The counsel for the appellee has exhibited the transcript of the [158]*158record of an order of the superior court, made at a term subsequent to that at which the judgment ivas rendered, showing that the court received the evidence of the clerk, that a plea had been regularly filed, and that issue was joined thereon, and directing the plea to be entered nunc pro tunc. But we cannot regard this transcript as any part of the record. In the case of Vaughan & Field, executors of Field v. Freeland, reported in a note to 2 H. & M. 477, this Court decided, that it was erroneous in the district court, after the term to amend the record, even by the written minutes of the clerk. It would be much more improper to allow such amendment founded on the mere recollection and oral testimony of the clerk.”
In the case before us, the private memorandum of a judge no longer in office, and the docket of a clerk no longer a clerk, would have to be resorted to to make an order of the filing of a plea in this case nunc pro tunc. This clearly can not be done. We must therefore consider, that in the trying of this ejectment case, no plea was filed in the circuit court, and of course no issue was joined, and yet a jury was empaneled and sworn to try the issue joined, and they found a verdict for the plaintiff for the land in the declaration mentioned, and that he was entitled to this land in fee simple! On this verdict so procured, the court rendered on December 20, 1875, a judgment, that the plaintiff recover of the defendants the possession of the premises described in this verdict and his costs, and writ of possession was awarded him.
This is the judgment to which a writ of error has been granted; and it is clear, that it must be reversed without any regard to the merits of the case as set out in their bill of exceptions, for it is very well settled, that in no case either civil or criminal, can the court direct the empaneling of a jury and the trial of a case when no issue has been made up; and if this be done, as it was done in this case according to the record, the court below could not properly enter up any judgment on this verdict of the jury so rendered.
The cases are numerous both in Virginia and in this State, where verdicts and judgments have been set aside by the appellate court, only because the verdict was rendered when no issue had been joined. See Stevens v. Taliaferro, 1 [159]*159Wash. 155; Taylors v. Houston, 2 H. &. M. 161; Kerr v. Dixon, 2 Call 379; Williamson’s Adm’r v. Bennett, 3 Munf. 316; Sydnor v. Burke, 4 Rand. 161; McMillion v. Dobbins, 9 Leigh 422; Rowans v. Givens, 10 Gratt. 250; B. & O. Railroad Co. v. Gettle, 3 W. Va. 376; B. & O. Railroad Co. v. Christie, 5 W. Va. 325; Gallatin’s heirs v. Haywood’s heirs, 4 W. Va. 1; B. & O. Railroad Co. v. Faulkner, 4 W. Va. 180; State v. Conkle alias Swank, 16 W. Va. 736; State v. Douglas, 20 W. Va. 770.
These decisions were rendered in a great variety of cases. In actions of debt, detinue, trespass on the case and assump-sit, and in writs of right and indictments for felonies. None of these however happen to be actions of ejectment; and it is now claimed by counsel for the defendants in error, that though in all other cases, either criminal or civil, the judgment of a court based on the verdict of a jury professedly on the issue joined, where in fact no issue appears by the record to have been joined, must be reversed by the appellate court. Yet such a judgment ought not to be reversed in an ejectment cause; because by the law Code of W. Va. ch. 90, § 13, p. 519, no other plea can be filed in an ejectment case except the plea of “not guilty;” and therefore it must be conclusively presumed that the jury were really sworn to try the issue on the plea of not guilty, though no plea was put in.
It is said, the only issue which could be made up, is the one actually tried, and it would be too technical to reverse, because the formality of entering the plea of not guilty was omitted. But these cases abundantly show, that the court has not reversed judgments entered upon such verdicts, because there was any doubt as to the real issue which the jury tried, nor because the defendant might have made up some other issue, if he had pleaded. The reasons for these decisions are entirely different from what this argument presumes. The real ground on which these decisions rest is, that by the common law the court has no right to make up the issue and empanel a jury to try it; but the parties by their pleadings must first come to an issue, and then it is tried by a jury. When therefore the record shows, that the parties by their pleadings have not come to any issue, but nevertheless the record shows that the issue was tried, this issue must either have been [160]*160illegally made up by the eourt or by a blunder it must have been assumed to have been made up by the .parties, when in fact it was not.
In some ot the cases we have cited, the record showed distinctly what was the exact issue tried by the jury, and also that the .verdict was distinctly responsive to such issue; and that it was the only issue the parties in the particular case could have made, had they by the pleadings made any issue. Yet the judgments were reversed, because no issue so far as the record showed, had been formed. It has thus been held as absolutely necessary in every case, that an issue shall be made up by the pileadings, before a jury can be empaneled to try the case.
The State v. Conkle alias Swank, 16 W. Va. 786, and the State v. Douglass, 20 W. Va. show, that on indictments for felony, if the defendant does not pilead, but the jury is nevertheless sworn to try the issue, which could be only on the plea of “not guilty,” and he is found guilty of the felony charged in the indictment, though there can be no doubt, that precisely the same issue and verdict would have resulted, had the defendant put in the only plea he could have put in; yet this Court has nevertheless, reversed such judgments entered on such verdicts. The court having no authority to empanel a jury, in that or any case, till an issue has been made up by the parties; and therefore a verdict rendered by a jury when no issue has been so made up, must be treated as a mere nulity.
So in the cases of Taylors et al. v. Huston, 2 H. & M. 101; Rowans v. Givens, 10 Gratt. 250; and Gallatin’s heirs v. Haywood’s heirs, the jury were sworn in cases of writs of right, and rendered verdicts on which the courts entered up> judgments. But in each of these cases the appellate court reversed the judgments because the record did not show, that the defendant had plead, or that any issue had been joined by the parties. Yet in these cases as in all other cases of writs of right, the jury were sworn in the words of the statute: “You shall say the truth whether C. D. hath more right to hold the tenement which A. B. demandeth against him by his writ or right, or A.. B. to have it as he demandeth.” Thus the issue actually tried by the jury in these eases, as [161]*161distinctly appeared on tbe face of the record as it could possibly have appeared, had the defendant put in his plea, and it is precisely the same issue as would have been tried, had the defendant filed his plea. Yet no plea having been filed so far as the record showed, the appellate courts set aside judgments on verdicts, rendered when the record showed distinctly the issue joined; and when it was precisely the issue which would have had to be formed by the parties, merely beoause it had not been formed by the pleadings of the parties.
The courts obviously acting on the principle, that by the common law and our universal practice, no jury can be empaneled and no case can be tried, till there has 'been an issue made by the pleadings of the parties, and that such was the case must appear by the record. It is obvious, that the jury can not be empaneled to try an issue never formed by the parties by their pleadings, any more in an action of ejectment than in a writ of right, for which it has been substituted. The same reasons applying in both cases, and indeed in all eases, whether civil or criminal. It is a fundamental principle of the common law, that the parties by their pleadings must come to issue before any cause can be disposed of or tried by a jury.
The attorneys for the defendant in error, rely on the case of Douglass v. The Central Land Co. 12 W. Va. 505, to sustain his position, that because there can be but one issue in an action of ejectment and but one plea in such action, the failure to put in this plea or form this issue, ought not to prevent the court from rendering a judgment on the verdict of the jury in such a case In that case it was held, that as there could be but one conclusion to the plea of non assump-sit, and that conclusion was necessarily to the country, it was unnecessary formally to add to it, in order to make the plea good. This decision was obviously right, and in full accord with the decisions in Virginia and in this State.
But surely it is one thing for the courts after a verdict, to construe pleas liberally to sustain a verdict and judgment thereon, and in so doing earry out the liberal spirit shown by the Legislature in the statutes of jeofail; and quite a different thing for the courts to dispense with pleading altogeth[162]*162er, and permit cases to be tried by juries in which the defendant has not plead at all, and allow judgments to be entered upon such verdicts.
For this reason the judgment of the circuit court of Kanawha, rendered on December 20, 1875 must be set aside, reversed and annulled, and the plaintiffs in error must recover of the defendant in error, his costs about his writ of error in this Court expended, and the vexxlict of the jury must also be set aside and annulled, and this cause must be remanded to the circuit court of Kanawha, to be further proceeded with according to the principles as laid down in this opinion and further according to law.
We deem it unnecessary to express any opinion on the question, whether the four bills of exception taken by the defendants below, under the circumstances set out in the statement of this case, constitute any part of the record in this case; as we take it for granted, that the court below when this case is again tided, will not adopt the unusual and very questionable practice of signing bills of exceptions under any circumstances, at a term of the court subsequent to the term at which the judgment is rendered. We therefore decline to decide, whether under the circumstances appearing in this case or whether under any circumstances, such a pi’actice-is allowable.
Judges Haymond and Johnson Concurred.
Judgment Reversed. Case Remanded.