39 Pa. Super. 94 | Pa. Super. Ct. | 1909
Opinion by
This was an action of trespass. The demurrer to the plaintiff’s statement of claim having been overruled, the defendant pleaded not guilty and the case went to trial on the issue thus raised. The official report of the trial shows that at the conclusion of the evidence counsel for plaintiff and for defendant orally requested binding instructions in favor of their respective clients, and that the court virtually directed a verdict for the defendant, to which direction the plaintiff excepted. Later, verdict having been rendered in accordance with the court’s direction, the plaintiff moved for judgment non obstante veredicto upon the whole record in accordance with the provisions of the act of 1905. The court sustained the motion and entered judgment in plaintiff’s favor, but for no specific amount. The defendant excepted, appéaled and assigned for error the action of the court, (1) in not entering judgment in his favor; (2) in entering judgment for plaintiff non obstante veredicto; (3) in not entering judgment in his favor on the demurrer.
The demurrer was properly overruled. The statement of claim alleges: (1) the occupancy of certain described premises with the appurtenances by one Moriarity as the plaintiff’s tenant; (2) the fact that the premises had as appurtenant thereto a privy and privy well with the appliances thereunto belonging, of which the plaintiff and her predecessors in title and their tenants had long had the peaceable use and quiet enjoyment as appurtenant and necessary to the use of her lot; (3) the fact that the defendant “wrongfully, maliciously and injuriously” deprived
The next question to be considered is as to the regularity of entering judgment for the plaintiff non obstante veredicto. The question of practice is well worthy of consideration, and is distinctly raised by the appellee’s counsel. If the case stood as at common law, there would be a sufficient cause of reversal in that the judgment is repugnant to the verdict. But by sec. 5 of the Act of March 28, 1835, P. L. 88, extended to judges of the common pleas by the Act of April 22, 1863, P. L. 554, power was given to reserve questions of law argued on the trial of a cause, “for the consideration and judgment of all the judges of the court sitting together,” and this grant of power was held to carry with it by implication authority to enter judgment for the defendant non obstante veredicto. But, where, under these statutes, a verdict is taken subject to the opinion of the court upon questions of law reserved, it
The judgment is reversed and judgment is directed on the verdict without prejudice, however, to the right of the plaintiff to appeal from such judgment.