37 Pa. Super. 134 | Pa. Super. Ct. | 1908
Opinion by
The defendant’s motion to quash this appeal raises a question of practice of some importance. The plaintiff presented a motion for binding instructions in its favor, and after verdict by direction for the defendant moved 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 for the plaintiff non obstante veredicto upon the whole record. A rule to show cause was granted, and after argument was discharged in an opinion filed. Thereupon judgment was entered on the verdict and the plaintiff appealed. The record fails to show that either the charge or the refusal of the plaintiff’s .point was excepted to, or that any exception was requested or granted to the refusal of plaintiff’s motion for judgment non obstante. The provisions of the Act of April 22, 1905, P. L. 286, so far as material in the disposition of the motion to quash, are that “it shall be the duty of the court, if it does not grant a new trial, to so certify the evidence, and to enter such judgment as should have been entered upon that evidence, at the same time granting to the party against whom the decision is rendered an exception to the action of the court in that regard. From the judgment thus entered either party may appeal to the Supreme Court or Superior Court, as in other cases, which shall review the action of the court below, and enter such judgment as shall be warranted by the evidence taken in that court.” We are inclined to the opinion that the words “at the same time granting to the party against whom the decision is rendered an exception to the action of the court in that regard,” imply that the party shall request an exception; for why should an exception be entered if the party apparently, judging from his silence, is satisfied with the decision? This conclusion makes the practice analogous to the practice on refusal of a motion for judgment for want of a sufficient affidavit of defense, and of a motion for judgment non obstante veredicto on a question of law reserved. Appeals have been quashed or the assignments of error dismissed because there was no exception to the action of the court upon such motions. As to the first see Titusville Building & Loan Association v. McCombs, 92 Pa.
The appeal is quashed.