Opinion by
Upon a trial of the merits of this action in assumpsit, the jury disagreed and was discharged without rendering a verdict. The defendant, having presented a point for binding instructions which had been overruled, duly filed a motion with the trial court, pursuant to the Act of April 20,1911, P. L. 70,12 PS §684, for judgment upon *576 the whole record. 1 The court en banc subsequently overruled the motion and the defendant took this appeal. The question involved, in limine, is whether there is a right of appeal under the Act of 1911, cit. supra, from the refusal of a motion for judgment upon the whole record. That question has been exhaustively argued before a full bench upon a reargument on our own motion. In the view we take of this question, it becomes unnecessary for us to go into the merits of the case.
The Act of 1911 does not afford a right of appeal in the circumstances here present. Consequently, we are without jurisdiction to entertain the instant appeal. Such properly comports with this Court’s ruling in
Lipsky v. Stolzer,
During the same period, however, two such appeals were taken to the Superior Court; and, for some unexplained as well as unperceivable reason, the
Lipsky
ease was neither mentioned nor was its ruling referred to in the opinions for the Superior Court. In neither case was the question of the right to appeal raised or argued. In the earlier case (W.
H. Buck et al. v. McArthur,
The need for the 1925 amendment of the N. O. V. Act of 1905, referred to in the opinion for the Superior Court in the
O’Kane
case, supra, had been made quite evident by this Court’s opinion in
Sloan v. Miller,
Thus, did the interpretation of the Act of 1911, as contained in the
Lipshy
case, receive strong, implied legislative confirmation in 1925. If that be not so, then, why did the legislature act affirmatively by the amendment of 1925 to confer a right of appeal from the refusal
*579
of a motion for judgment n.o.v.
under the Act of 1905
and not do likewise with relation to the refusal- of -a motion for judgment upon the whole record under the Act of 1911 except for a controlling legislative intent that the law- with respect to appeals under the Act of 1911 should remain as the
Lipslcy
case had construed it to he, viz., that “until a judgment is entered [under the Act of 1911] there can be, of course, no appeal'to this court” ? The question furnishes its own. answer; and, the pertinent rules of statutory construction confirm the validity of the answer: cf.
March v. Philadelphia & West Chester Traction Co.,
Such was the settled state of the germane law at the time of the decision in
Conley v. Mervis,
The collateral effect of the action so taken in the
Conley
case on the question of appellate jurisdiction under the Act of 1911 (which is our principal present concern) was to set in train a relatively large number
*580
of similar appeals,
2
for the most part ineffectual,
3
and leave behind confusion and inconsistency in the deci-sional law on the procedural question involved. Upon treating with the defendant’s motion to quash, the
Conley
opinion did little more, if anything, than mention
Lipsky v. Stolzer
and did that in the relatively brief last paragraph of a lengthy opinion devoted almost entirely to a discussion of the trial court’s error in restricting cross-examination by the defendant. In fact, the
Lipsky
case was mentioned in the
Conley
case just twice, once narratively, merely to identify it as the authority cited by the defendant in support of his motion to quash, and the second time in the following statement, viz., “If there was conflicting evidence necessitating the determination of question of fact by a jury,
undoubtedly the rule of the Lipslcy case would require that the appeal be quashed”.
(Emphasis supplied.) So that, instead of
Conley v. Mervis
overruling the
Lipslcy
case, it affirmatively recognized the continuing force of that authority. Indeed, the very statement quoted above plainly reveals the inherent fallacy of the decision in the
Conley
case. What that case obviously sought to hold was that, where a judgment upon the whole record should have been entered by the court below, an appeal from the refusal to enter judgment in such circumstances lies under the Act of 1911, but Avhere, upon the review of such an appeal, there appears to be “conflicting evidence necessitating [a] determination ... by a jury . . . the rule of the Lip-sky case would require that the appeal be quashed”. In short, the ruling of the
Conley
case is that,
if a judgment should have been entered below, then there is a
*581
right of appeal but, otherwise, not.
It is, of course, horn-book that jurisdiction can never be made to depend upon the character or extent of the relief affordable under the particular facts. In
Zerbe Township School District v. Thomas et al.,
The appellant’s assertion that “This Court has consistently followed
Conley v. Mervis
ever since” is not borne out by the reported cases. Of the thirteen appeals to this Court, since
Conley v. Mervis,
from refusals of judgments under the Act of 1911, in nine of them the question as to the right of appeal under the Act was neither raised, discussed nor passed upon: see
McFadden v. Pennzoil Company,
In tbe remaining four cases, where the right of appeal under the Act of 1911 was either considered or alluded to, the rule of the
Conley
case was not followed in a single instance: see
Phillips v. American Stores Company,
Since the decision in
Conley v. Mervis
there have been four appeals to the Superior Court from refusals of motions for judgment under the Act of 1911 following jury disagreements (footnote 2, supra). In the earliest of those cases
(Kasmer v. Metropolitan Life Insurance Company,
From what we have shown, we believe it is clear that the ruling in Conley v. Mervis has not been followed by this Court in any instance where the question of the right to appeal from the refusal of a motion for a judgment under the Act of 1911 has been raised or considered. On.the other hand, as justification for appeals in such cases, an entirely different legal theory has grown up, viz., that the refusal to enter judgment upon the whole record is tantamount to the granting of a new trial and that the granting of a new trial remains appealable by virtue of a common law right thereto, unaffected by the procedural statutes which authorize' entry of judgment upon the whole record: cf. March v. Philadelphia & West Chester Traction Co., supra, which, however, was exclusively concerned with the N. O. V. Act of 1905 and its 1925 amendment.
But, such an appeal, in connection with action taken under the Act of 1911, is an anomaly, for, while the right to appeal from the granting of a new trial derives from the common law and does not depend for its existence upon the statute, the scope of the appeal embraces no more than a review for a palpable abuse of discretion or a plain error of controlling law. Where the jury disagrees, unless a judgment be entered upon the whole record, a new trial ensues without a grant thereof by the court. Manifestly, therefore, there is no place even for a revieAV of judicial discretion' where none has been exercised and where judicial action would have been vain and inefficient. It can make no material difference whether the court, in disposing of a motion for judgment upon the whole record, simply orders “motion dismissed”, as in the Lipsky case, or adds to such action *585 an order for a new trial. In the given situation, the latter provision would be but surplusage. The retrial results from the jury’s disagreement and, Avith the motion for judgment upon the whole record denied, the new trial follows in due course as a matter of law. It would be absurd to say that a right to appeal, after the denial of a motion for judgment upon the whole record under the Act of 1911, depends upon whether the court included with its order, denying the motion for judgment, a direction for a new trial. A court is ineffectual to grant ivhat it lacks the power to withhold. Incidentally, Lip sky v. Stolzer did not, as the appellant suggests, ignore “the common law rule permitting an appeal from an order granting a new trial”. The Lipsky case Avas simply not concerned with such an appeal since the new trial was not the result of an exercise of judicial discretion but folloAved from the disagreement of the jury.
In any vieiv, it cannot reasonably be denied that, so far as the terms of the Act of 1911, itself, are concerned, the Act makes but one matter appealable, viz., “the judgment thus entered”, that is, on a motion for judgment upon the whole record folloAving disagreement by the jury, and confers the right of appeal upon but one party, viz., “the party against whom [such judgment] is entered . . .”. Lipsky v. Stolzer correctly so interpreted the statute and pertinently held, in addition, that an order dismissing or denying a motion for judgment upon the whole record under the Act of 1911 is not a judgment within the contemplation of the Act, as indeed it is not: cf. Restatement, Judgments, § § 1, 2 and 3. The appellant affirmatively concedes as much. Its brief states, — “It may be admitted that Lipsky v. Stolzer, supra, interpreted literally and logically the language of the Act of 1911. That Act does not, literally construed, permit an appeal in the absence of a judgment entered in the loAver court.” Yet, in the present instance, Ave have an appeal under the Act of 1911, although no *586 judgment was entered by the court below, and an appellant against whom no judicial action has been taken. He is merely the party whose motion for judgment was overruled and, for such, the statute provides no appeal.
Against all of this, only one argument, based on supposed expediency, is advanced for maintaining in force the allowance of appeals under the rule of Conley v. Mervis. The appellant argues that such appeals serve “to expedite the determination of litigation”, — a suggestion derived, no doubt, from a dictum of the Conley case to the effect that “. . . the act [of 1911] was not intended to be productive of unnecessary . . . litigation”. But, just what has been the actual experience since the decision in the Conley case? As stated in footnote 3, supra, — of the thirteen subsequent appeals to this Court, only three resulted in the entry of judgments here. The other ten cases were returned for the retrial which otherwise would have ensued promptly, following denial of the motions for judgment, had the appeals not been taken. Furthermore, in the very nature of such appeals, all of the testimony must be printed for the review; and, as a consequence, large and expensive records were brought up on those ineffectual appeals to no good or useful purpose whatsoever. So that, contrary to the above-quoted comment of the Conley case, this “unnecessary . . . litigation” was not the product of the Act but resulted from a disregard of the Act and its long-settled and sound interpretation.
The appellant decries what it speaks of as the reinstatement of Lipsky v. Stolzer. But, the characterization is not accurate. The Lipsky case is in no need of reinstatement. It has never been overruled; its continuing validity was expressly recognized in Conley v. Mervis; and, the most that has ever been claimed for the Conley case is that it “modified” the rule of the Lipsky case: see Phillips v. American Stores Company, supra, at p. 35. All that need be done, therefore, and all we have endeavored to do herein is to clear away the confu *587 sion that tbe ruling in Conley v. Mervis unfortunately bad tbe effect of injecting into tbe procedural question and, so, leave extant in full vigor the interpretation of the Act of 1911 as contained in Lipsky v. Stolzer, If persisting in a legal error over a period of years can, in any circumstances, become justification for judicial con-donation of tbe error for tbe future, this case certainly does not present any such situation in tbe light of tbe reported decisions as we have reviewed them.
Tbe appellant seems to overlook entirely tbe crucial difference between the circumstances underlying tbe entry of a judgment non obstante veredicto under tbe Act of 1905, as amended, and tbe entry of a judgment upon tbe whole record under tbe Act of 1911. In tbe first category, tbe facts are conclusively established, as a matter of law, by a jury’s verdict, while in tbe second group there has been a disagreement of tbe jury and no one but tbe court can find tbe facts in passing upon a motion for judgment under the Act of 1911. There is a very real danger in tbe latter situation of judicial invasion- of tbe time-tested and time-honored province of tbe jury. Tbe integrity of tbe right of trial by jury can best be preserved in such connection, as the Act of 1911 endeavors to safeguard it. In keeping with the intent there shown, where a trial has resulted in a disagreement of tbe jury, tbe case is to be tried again if the trial court is “of opinion that tbe case should be retried”. After all, the right to move for judgment upon tbe whole record, after a disagreement of tbe jury, is of relatively' recent creation. No such right existed at common law save for tbe practically ineffectual and undemandable “reserved point”: See March v. Philadelphia & West Chester Traction Co., supra, at p. 415. But, a trial court uoav has tbe power to enter judgments in such circumstances, — -a power which will no doubt be appropriately and effectively exercised whenever tbe facts are such that reasonable and sensible men can not differ about them or draw conflicting inferences from them. That *588 power derives from the Act of 1911, supra, which we will do well to follow as written and as Lipsky v. Stolzer, supra, interpreted it.
The appeal is quashed at the appellant’s costs.
Notes
The Act of 1911, P. L. 70, provides as follows in material part:
“Whenever upon the trial of any issue a point reguesting binding instructions has been reserved or declined, and the jury have disagreed, the party presenting the point may, within the time prescribed for moving for a new trial, or within such other or further time as the court shall allow, move the court to have all the evidence taken upon the trial duly certified and filed so as to become part of the record, and for judgment in his favor upon the whole record; whereupon it shall be the duty of the court, unless it shall be of opinion that the case should be retried, to so certify the evidence, and to enter such judgment, if any, as under the law should have been entered upon that evidence at the time of trial, at the same time granting to the party against whom the judgment is rendered an exception to the action of the court in that regard. Prom the judgment thus entered the party against whom it is entered may appeal to the Supreme or Superior Court, as in other cases, which shall review the action of the court below, and enter such judgment, if any, as should have been entered by the court below upon that evidence.”
The inspirational influence of Conley v. Mervis was not felt immediately. For three years thereafter there was not another like appeal. But, from 1939 to 1947, both inclusive, there have been thirteen such appeals to this Court and four to the Superior Court.
The thirteen indicated appeals to this Court resulted in but three reversals with entry of judgment on the merits, ten going back for new trial. Of the four appeals in the Superior Court, two resulted in reversals, one was quashed and one affirmed for retrial.