Ramsburg v. Erb

Citations

• 16 W. Va. 777
• 1880 W. Va. LEXIS 54

Syllabus

<p>1. Where the claimant of a fund, attached in the hands of a garnishee upon an attachment sued out in a cause at law, files his petition claiming said fund under the provisions of the twenty-fourth section of chapter one hundred and six of the Code of this State, and the parties by consent entered of record waive the right to have a jury, and submit the whole matter of law and fact to the court, to be heard and determined by the court, and the court renders judgment dismissing such petition, the Appellate Court when the evi-deuce given before tbe court below does not appear in the record as a part thereof by bill of exceptions, or is not made a part of the record by the court below in some other manner recognized by law as sufficient, will generaly presume that the judgment of the court below is right, and will affirm the same.</p> <p>2. The fact, that depositions taken prior to the hearing and decision of the court below in such a case, to be read as evidence at the trial, are found among the papers of the cause, and copied into the record by the clerk, is not sufficient to authorize the Appellate Court to consider such depositions as having been given in evidence before the court below.</p> <p>3. In such a case the usual and safest practice is, to make the evidence a part of the record by bill of exceptions.</p> <p>4. Where the judgment of, and action of, the court below is definite, and intelligibly presented in the record, and does not appear from the record to be wrong, it is presumed to be right.</p>