72 Pa. 29 | Pa. | 1872
The opinion of the court was delivered, by
— Although there was no judgment in this case in the court below, we listened to the argument at the request of counsel in the hope that an examination of it might enable us to determine the questions discussed. But there is no mode of reaching them in the state of the record before us. At the conclusion of the trial of the cause below, the counsel chose to take the case from the jury, by agreeing that the judge should take the papers and evidence given in the case to chambers, and after examination and hearing of the counsel, to determine all questions of law and fact arising in the case. This was nothing but a reference of the facts as well as the law to the judge as an arbitrator. The provision that the verdict should be entered by the clerk as that of the jury i wrought no change in the reference — the jury was discharged and the finding was still that of the judge and not of the jury. We do not say it was not binding; but it changed the course of the trial. It was no longer a trial in due course of law, with the remedy by exception to the charge and a writ of error. There was no charge to be excepted to and no verdict. In its place there was merely an opinion of the court upon facts, without even a reservation of the right to except and to sue out a writ of error. And had there been such a reservation it would not have brought the case within any known legal course of procedure, entitling a party to a writ of error and review in this court. It was neither a case stated nor a special verdict. In the unreported case of Haviland v. Wickersham, from Chester county, decided at Philadelphia two or three years ago, it was agreed to submit the decision of the whole case to the judge, including the damages of the plaintiff, with a right to each party to take a writ of error, as if the case had been proceeded in, in the ordinary course, upon the exceptions taken in the trial, and exceptions to the opinion of the court, as to a charge to the jury. In that case the plaintiff’s evidence was in and a motion for a new trial made. But on a writ of error this court refused to hear the errors assigned under this agreement. This case is further out of the course of a legal trial than that, and there being no judgment beside, the writ of error must be quashed.
