186 Pa. 565 | Pa. | 1898
Opinion by
The plaintiff, on May 17, 1880, had entered in his favor a judgment for $829.95, against Valentine B. Shollenberger. On June 23,1880, he issued 11. fa., and levied on the right, title and interest of Shollenberger in a lot of ground in West Brunswick township, Schuylkill county, having thereon erected a dwelling and other improvements. The property was condemned; no sale, however, was made. Afterward, on July 31, 1884, an •alias fi. fa. was issued, and the same property levied and condemned ; then a writ of ven. ex:, was issued, and the property sold to Charles Fislier, this plaintiff, on November 17, 1884, to whom the sheriff same day acknowledged deed. Shollenberger and Ills family had entered into possession of the property in 1878, without objection from Abraham Scharadin, in whom was the legal title to the land. There was some evidence that Valentine Shollenberger, who was insolvent, had aided in part in putting up the buildings. But on April 1, 1879, Scharadin and wife conveyed the lot, not to Valentine, but to his son, Jacob Shollenberger, for the consideration of $100, then loaned to Jacob $300, and took a mortgage from him on the property for $400, as security for the purchase money and loan. Subsequently, Jacob became indebted to Scharadin in further sums of money, for which he took, on July 1, 1880, a judgment for $350.
The Watsontown planing mill, having supplied lumber and other material for building the improvements on the lot, filed a lien for same, naming Jacob as owner or reputed owner; the lien was for $342.78. Benneville & Company also obtained judgment against Jacob for $72.36. These last two claims, amounting to $425, Scliaradin paid off and satisfied, be thus paying that much of Jacob’s debts. Jacob was a young unmarried man, having a situation as clerk in Philadelphia, and it was alleged he was endeavoring to provide a home for his father and mother by purchasing the lot and improving it.
The second assignment raises the issue as to whether the reservation is a good one. It is argued that the question reserved is not one of law, but of fact.
Because of some conflict in the authorities, and with a view to a full and careful consideration of this question, of our own motion we ordered a reargument of .this assignment before a full bench, and we now announce our conclusion..
On this subject, the learned judge of the court below says in his opinion on the point reserved: “1. It does not appear to be questioned by plaintiff’s counsel that, in determining whether or not there was any evidence entitling him to recover, the evidence submitted by him is to be judged of in connection with the admitted facts in the case, and those established by undisputed evidence; and that, if these are of such a character as clearly to overcome the mere presumptions capable of arising upon the plaintiff’s evidence standing alone, so as to reduce its force to a mere scintilla, it must be declared that there was no evidence warranting a recovery. This is nob any inquiry whether under all the evidence the plaintiff is entitled to recover, or whether the evidence is sufficient to warrant a recovery. The inquiry is, whether there is any evidence beyond a scintilla in substantiation of plaintiff’s claim. If there is not, there is no evidence capable of submission to a jury, and his claim must fall, not for insufficiency, but for -want of evidence.”
The court then goes on to show, and does show conclusively,
Whether there be any evidence which entitles the plaintiff to recover is necessarily a question of law. If defendant had demurred to the evidence as insufficient to entitle plaintiff to a verdict the court would have sustained the demurrer, as is clear from the opinion filed on the reserved point. If he had not reserved the point he would have been bound, after consideration, to have granted a new trial, and then, on the same evidence, would have peremptorily instructed the second jury to find for defendant. We would then have had this appeal, raising by the assignments of error the question as to whether there was any evidence to submit to the jury entitling the plaintiff to recover. The only effect of declaring the reservation bad is to put the parties to two trials instead of one. Besides, there is the advantage, often, that a single judgment of this Court is final. Where the court below can, as in some cases, submit the evidence to the jurjr, reserving the point, and the jury find for plaintiff, and judgment is afterwards entered for defendant on the point reserved, and the Supreme Court, on appeal, differs in opinion with the court below, we can direct judgment to be entered for plaintiff on the verdict.
Notwithstanding the conflict in the cases heretofore decided, with a view to hereafter freeing the question from doubt, we decide that the question, whether there be any evidence which entitled the plaintiff to recover, is a good reservation, without a statement upon the record of the facts on which the point is based. And if the evidence be submitted to the jury, and there be a verdict for plaintiff, or if the court direct a verdict for plaintiff, the court can, on such a reservation, enter judgment for defendant, non obstante veredicto.
The judgment is affirmed.