Wheeling Sunday register. [volume] (Wheeling, W. Va.) 1882-1934, 1891-06-14


turned a verdict for the plalhtlh IN each
case \ motion by the defendant 10 set
aside the verdict and grant new trial was
overluled. and the usual thirteen freehold
cps beinq summoned, MessrS. John =. Nay
/ lor o. L. Dewey AlOuzO LOrlng, j. Ell
| wood Hughes, and G.. Hess, We're selected,
! and were directed TO ascertain the value cl
the ground, but a stay was granted 70 ena-
| HE the defendants 10 take a writ OF error
10 the Supreme Court. The decls on made
Yesterday dismisses the writ and ailirms
the decision of the Circuit.Court and the
condemnation proceedings will now likely
go on.
The next case Of local interest was that of
the GAINESVILLE Hay Tool Company V. Boyd
Il al. appeal from the Circuit Court OF Ohio
County, a decision being handed down br
Judge Lucas, affirming the decision OF the
lower Court This case arose out OF the
assignment made by Pryor Boyd TO j. b.
Sommerville and involved the right of
County Clerk 10 take an acknowledgement
outside of his regular Office at the Court
House. Clerk Hook having, in this case,
taken the acknowledgement of one
of the parties TO the deed Of ar
raignment at his residence, on South
Front street, Island, after office
hours in the evening. This had been the
practice of County Clerks in Brooke and
Hancock counties. but the plaintiffs in this
case alleged it was not sanctioned by the
| laws, and the Circuit Court deciding
against them, took an appeal. The opin-
| ion of the Supreme Court gives, in effect,
! County Clerks the right 10 acknowledge
papers anywhere WITHIN the limits oil thelr
counties.
A third case Of interest was that of the
CITY of Moundsville V. l.. f. Velton, being
a writ Of error from the Circuit Court of
Marshall county Judge Brannon handed
down an opinion sustaining the Court be-
low. This case arose out OF sales OF liquor
made by VeltOn, at the Henrietta House,
Moundsville, in violation OF an ordinance
prohibiting such sale. Nelton was tried and
fined by Mayor Purdy Of Moundsville,
whereupon the defendant took an appeal TO
the Circuit Court There the defendant
was again found guilty, and was sentenced
TO paw a fue and Speci d fee for the attOr-
lnev for the City Of MOundsville. The de-
PENDANT appealed to the Supreme Court,
alleging the following errors
/. The certificate Of the Judge certifying all
the evidence introduced before the Court on the
part of the plaintin ano defendant, fails 20 show
that section one OF al ordinance adopted. Feb
ruarv H." 1870. entitled, An Ordinance ke-
speeding Licenses for the sale OF SpirI.Uous
Liquors" the same being the ordinance set out
i'm the summons. was proven and put In cyl
deuce; therefore, inaSmuch AS courts not ma.
nicipal do not take judicial notice OF municipal
ordinances, the Judgment rendered by the Court
| Is without due process OF law ma nuIlltA ;
nnd this because the Court was not Informed OF
, IA law 10 npDlV to the facts proven. in order TO
! form q Judgment. The act OF the Court was an
arbitrary one, which Is yer due process o.
law Nor can the failure OF the certificate OF
? the Judge to show that such ordinance was
proven and put in evidence be supplied by 81
presumption that IL WAS done, although II may
Informally appear that the counsel Tor the iowa
81 .tts a ks4tstN IA fNta IN
. TO Introduce the sections of ordinances and by
laws OF old and new charter bearing upcn
, licenses" because IL is elementary law, that "a
: presumption Il not aliowa5 e. TO take from or to
! add TO a record. Best les. the orr was so gem
eral extensive and ind finite. that It cannot be
: inferred that 10 included the ordinance set out
in the summons. Nor does IL follow that be
, cause party offers to prove writing That he
alwayS succeeds In doing 50.
.. This cause was commenced in April,
, 1873 and was pending on the 18Th day OF Febru-
. arv 1889 when the town OF MoundSville was re-
, chartered by special law uuder the name OF
the civ OF MOundSyillc. and IN Section i6 OF the
new charter il is divided that, "All actions,
suits and proceedings then pending in the name
! of the town OF MoUndsvi L. m ~ be proceeded
,, with. tried ard determined in The name Of the
/ City Of MOuud,ville.'
Had it not been for this section in the new
charter. this suit would have abated. because
j the town Of MoundSvlle was functus otlcio, and
therefore, the trial Of this SUIT In the name OF
n the town Of MoundSville was a N S-tral 1t
, | should nave been revived IN the name OF the
= Civ OF Moundsville, but il WAS not done and
for this reason the Judgment thtrin Is errone-
; Gus.
r 3 The finding OF the Court that the APP
T pCllant was selling. Is contrary TO the evidence.
e or the natural differences therefrom. The con
clusiOn OF the witness that there was sale can
not bind the appellant unless 1t Is shown that
D ne 50 regarded II. The witnesses opinions are
: not admissible evidence There can be no sale
{ unless all parties concerned 50 understand /;
to be
!, 1. The evidence of L. Pu,dy shows
that when he, rs Mayor, tried this case, but two
p witnesses Were examined, Bruce and AleNan-
der. and that they wee examined As 10 the sales
i made to them personally, and uot as 90 Il sale
made 70 Burley, the witness before the Circuit
- Court. Now. from this II appears that the ap
y, pellhnt before the Mayor WA. iould guilty on q
- / sale made TO Alexander. and before the Court
Z found guilty ON sale made to i riley; il
therefore follows that the olleu>e on which the
appellant was found guilty IN IA, Court Is not
the offence he WAS found guilty Of before thu
l. Mayor, and which he appealed. On the appeal
the appellant must be tried for the same sale or
: oficnse that he was tried before the MayOr
Another one cannot be substituted. This IS
error
The cause was tried without an issue joined
between The town an the appellant; while in
, such eases no formal issue ne be made. there
u still must be an issue "a denial on the part OF
j. the def ndant. There can be- no trial wiki ut
: an issue The record fails 10 show one. and
there can be- no presume tion @gaiu>t the record
9 In all cases the record mast show that trial
was had on an issue
5 Other matters before the Court yester.
day were as follows:
Lewis Y. Brown, appeal, from Kanawha
r county, opinion by Holt; decree of Circuit
Court All rmed
. CHukill Y. Myers, Ct al, appeal from Mo-
h nongalia county; argument concluded and
= case submitted.
r HukiN V. Gufy ct al, appeal, from the
? Circuit Court of MonOngalia county: ar
sued aud submitted
Adjourned until tomorrow morning a,
, 10 O'Clock