Commonwealth ex rel. v. Everts

19 Pa. Super. 419 | Pa. Super. Ct. | 1902

Opinion by

Beaver, J.,

We are asked to review a record in connection with which are contained the following docket entries :

December 6, 1900, jury called, selected and sworn.

December 6, 1900, by direction of court, compulsory nonsuit entered.

February 14, 1900 (evidently 1901), motion of plaintiff, E. O. Heck, presented to court to amend record by changing style of plaintiffs.

May 24, 1901. Rule to amend record heard by Hon. John M. Bailey, P. J., and discharged, and bill of exceptions sealed by E. O. Heck, plaintiff.

June 5, 1901, appeal by plaintiffs to Superior Court.

The motion for a nonsuit was made after the commonwealth had made an offer of evidence containing presumably its entire case. This assumption is based upon the fact that plaintiff made no effort to amend or enlarge the offer after the motion for nonsuit was made. This offer was not formally ruled out but is incidentally passed upon by the granting of the motion for a non-suit, the court saying: “ In view of the motion just now made by counsel for the defendant for a compulsory nonsuit, we will rule upon that motion and it will, in the view we take of the case, dispose of the pending offer as well.” The Act of March 11, 1875, P. L. 6, provides: “ That whenever the defendant, upon the trial of a cause in any court of common pleas of this commonwealth, shall offer on evidence, it shall be lawful for the judge presiding at the trial to order a judgment of nonsuit to be entered, if in his opinion the plaintiff shall have given no such evidence as in law is sufficient to maintain the action, with leave,” etc. The motion for a nonsuit, after the plaintiff’s offer, was, in effect, a demurrer to the evidence, and the granting of the motion was equivalent to a decision by the court that the plaintiff had offered no evidence, that is, no sufficient evidence to sustain the issue. We think, therefore, that the case comes within the provisions of the act of 1875 above quoted, which further provides that, in. case of a motion to set aside the judgment. of nonsuit and a refusal to do so, “ the plaintiff may remove the record, by writ of error, into the supreme court for revision and review in like manner and with like effect as he might review a judgment rendered against him upon a demurrer to evidence.” No motion, so far as the record shows, has ever been made to set aside the judgment of nonsuit. The case, therefore, as we view it, comes within the ruling in Haverly v. Mercur, 78 Pa. 257. If it be said, that the appeal is from the decree of the court, refusing the motion to amend made subsequently to the nonsuit, it is sufficient answer to say that it is an interlocutory decree and not a final judgment, and from it no appeal lies. This appeal, therefore, has been improvidently taken and the motion to quash must be allowed. Appeal quashed.