Vangilder v. Hoffman

Citations

• 22 W. Va. 1
• 1883 W. Va. LEXIS 37

Syllabus

<p>(*Woods, Judge, Absent.)</p> <p>1. Issues in chancery are not directed to enable the party to get additional evidence, (p. 8.)</p> <p>2. No issue should be directed until the plaintiff therein has thrown the burden of proof on the defendant, (p. 8.;</p> <p>3. If the circuit court improperly directs an issue, it may on the final hearing disregard the finding of the jury and enter such decree as to it seems right; and whether or not the issue was properly directed depends upon the state of the proofs at the time the order is made. If the court errs in this respect, such error may be reviewed and corrected by the Appellate Court, (p. 8.)</p> <p>4. If upon the state of the proofs at the time the issue is directed the bill should be dismissed, it is error- to direct the issue; and though the issue be found in favor of the plaintiff, the bill should notwithstanding be dismissed at the hearing; and in such case, if the bill is not dismissed by the circuit court, it will be dismissed by the Appellate Court, (p. 8.)</p> <p>5. When there is such a conflict of evidence, that it is so nearly balanced as to make it doubtful, on which side is the preponderance, an issue ought to be directed ; but when, though there be a conflict, it is not of such character, no issue ought to be ordered. The conflict of the evidence must be regarded as of this character and justifying the direction by the circuit court of an issue, whenever on appeal the Appellate Court is so divided in opinion as to the weight of the evidence, that some of the judges think, that the isssue ought not to have been directed, because the evidence established clearly one state of facts, while others of the judges think, that the evidence establishes an opposite state of facts, as in the present case. This marked diversity of opinion as to the weight of the evidence is itself sufficient to establish, that it is doubtful, on which side is the preponderance, and therefore in such case the order of the circuit court d