
    *Brumbaugh v. Wissler's Ex'or.
    September Term, 1873,
    Staunton.
    i. Judgments — Finality — Circuit Courts — Appeal.— When a Circuit court, upon appeal, reverses the final judgment of the County court and retains cause for a new trial, the judgment of the Circuit court is such a final judgment as is the subject of a writ of error.
    2. notion for New Trial — Bills of Exceptions — Evidence. —Where, upon a motion for a new trial because the verdict is contrary to the evidence, the motion is overruled, if the bill of exception states, not the facts proved but the evidence, and this is conflicting, all the evidence of the party excepting, in conflict with that of the other side, must be disregarded in the appellate court.
    This case was decided at the September term 1873 of the court, but was not then directed to be reported. It is now reported by request of counsel, and the direction of the judges.
    This was an action of assumpsit in the County court of Shenandoah, brought in May 1868, by J. Brumbaugh against John Wissler, to recover compensation for care and attention to his property at Columbia furnace during the war. It appears that Wissler was a Union man, and in 1862 left the state and made an arrangement with Brumbaugh to attend to and take care of his property. On the trial the jury found a verdict in favor of the plaintiff for $700, with interest from June 1st, 186S. The defendant thereupon'moved the court to grant him a new trial, on the ground that the damages were excessive, and that the verdict was contrary to the evidence. But the court ^'overruled the motion, and rendered-a judgment according to the verdict; and the defendant excepted.
    The exception contains a statement of the testimony given by the witnesses for the plaintiff and for the defendant; but it is not necessary to state it.
    Wissler obtained a supersedeas to the judgment from the judge of the Circuit court; and when the case came on to b heard the Circuit court reversed the- judgment of the County court, set aside the verdict, and directed a new trial; and the cause was retained in the Circuit court for further proceedings.
    The cause was continued generally in the Circuit court for three terms, and then Brumbaugh applied to this court for a writ of error; which was awarded.
    Williams & Williams, for the appellant.
    Jno. T. Harris, for the appellee.
    
      
      Judgment of Circuit Court Reversing Final Judgment of County Court. — The rule laid down in the principal case in the first headnote is followed in Crawford v. The Valley R. R. Co., 25 Gratt. 467; Commonwealth v. Lewis, 25 Gratt. 940; Morgan v. Ohio R. R. Co., 39 W. Va. 24, 19 S. E. Rep. 588; The Board of Education of Union District, Kanawha Co. v. Crawford, 14 W. Va. 794.
    
    
      
      Bills of Exceptions. — See monographic note on “Bills of Exceptions”' appended to Stoneman v. Commonwealth, 25 Gratt. 887.
    
   BOUUDIN, J.,

delivered the judgment of the court. .

This day came again the parties by their attorneys, and the court having maturely considered the transcript of the record of the judgment aforesaid, and the arguments of counsel, is of opinion that the objection taken at the bar, that the judgment"appealed from in this case was not a final judgment, and that the writ of error was therefore improvideutly awarded, is untenable. The court is of opinion that the judgment was such a final judgment as is the subject of a writ of error. The judgment of the County court, reviewed by the Circuit court, was certainly a final judgment; and if has more than once been held by this court, that such finality is imparted to the judgment of the Circuit court acting as an appellate tribunal, notwithstanding the judgment of the County court may *be reversed by the Circuit court, and the cause be ordered to be retained therein for further proceedings. No such proceedings having been had in the Circuit court in this case, except mere coutiimances, the judgment of the Circuit court was final, and the writ of error was not improvideutly awarded.

The court is further of opinion that the bill of exceptions taken by the defendant in the County court to the judgment of that court, overruling his motion to set aside the verdict of the jury and award him a new trial, upon the ground that the verdict was contrary to the evidence, is not well taken. It evidently contains a certificate, not of the facts proved in the cause, but of all the evidence adduced; and that evidence is conflicting. In such case, it is well established by numerous decisions of this court, that all evidence of the party excepting, in conflict with that of the other side, must be disregarded in the appellate tribunal. The result in this case is fatal to the pretensions of the defendant in the County court. This court cannot say that the evidence adduced by the plaintiff in that court, if uncontra-dicted, did not justify, or, at the least, tend strongly to the conclusion reached by the jury; and the verdict having been approved by the court of trial, it would be in violation of the uniform and well considered decisions of this court to interfere with it under such circumstances. Eor these reasons, the court is of opinion that the Circuit court erred in reversing the judgment of the County court, and that the judgment of the latter court should be affirmed. It is therefore considered by this court that the judgment aforesaid of said Circuit court be reversed and annulled, and that the defendant in error, as executor of John Wissler, deceased, out of the assets of his testator, in his hands *to be administered, do pay to the plaintiff in error his costs by him about the prosecution of his writ of error in this court expended.

And this court proceeding to enter such judgment as should have been rendered by said Circuit court, it is further considered that the judgment of the County court be affirmed, and that said I'ranklin H. Wissler, as executor of John Wissler, deceased, out of the assets of his testator, in his hands to be administered, do pay to the said Joseph Brumbaugh his costs by him about his defense in said Circuit court expended, and damages according to law. All which is ordered to be certified to said Circuit court of Shenandoati county.

Judgment of the Circuit court reversed.  