152 Pa. 609 | Pa. | 1893
Opinion bt
It is very seldom that the rules of court, relating to specifications of error, are ignored to such an extent as they are in this case.
The first specification is: “ The court erred in affirming
Rule xn requires appellant’s counsel to “ specify in writing the particular errors which he assigns and file the same in the prothonotary’s office.” Rule xxn declares: “ Each error relied on must be specified particularly and by itself. If any specification embrace more than one point, or refer to more than one bill of exceptions, or raise more than one distinct question, it shall be considered a waiver of all the errors so alleged.” Rule XXIII requires : “ When the error assigned is to the charge of the court, or to the answer to points, the part of the charge, or the points and answers referred to must be quoted totidem verbis in the specification.”
The first specification manifestly violates each of these rules. It does not specify any particular error. At best, it is in an attempt to group together, in one assignment, all the points .presented by plaintiff and affirmed by the court, and to complain of each and all of them as errors ; and that, too, without quoting a single point or answer thereto. According to rule, such an attempt at specifying errors must be regarded either as a waiver of all, or as no assignment of either. In either view it is not entitled to further notice, and is therefore dismissed.
The second specification is in pari delicto. It also offends against the same rules, in that it attempts to group together several distinct causes of complaint without specifying either of them.
The third.offends against rule xxnr, in that, while it quotes the court’s answer to defendant’s 8th point, it is silent as to what that point is. The point as well as the answer should have been “ quoted totidem verbis ” in the specification.
The fourth is defective in that it consists of a single sentence quoted from the body of the charge, but so severed from the context, to which it evidently refers, that it is unintelligible without it. The sentence quoted reads thus: “ But, in
Without further comment we refer to Outerbridge’s rules, etc., 37, 38, notes, and McAlarney’s rules (1892) 33, 34, in-each of which will be found a collection of authorities on the general subject. Even a hasty perusal of these will show that by “precept upon precept, precept upon precept; line upon line, line upon line; here a little and there a little,” this court has endeavored to impress upon counsel the utility as well as-the necessity of complying with the rules of court. While it is matter of congratulation that they are so generally observed, it is to be regretted that a few gentlemen of the bar occasional^ ignore them.
The fifth specification relates to what was said by the court as to interior lines of the block not having been run on the ground. It consists of a single sentence, extracted from the body of the charge and recited in the specification. If by that language, the learned judge meant to be understood as saying that none of those lines were run, or that the line in question, claimed by the defendants, was not run on the ground, he was not warranted in so doing; but, after reading the entire charge, and considering it as a whole, we think the language complained of was not intended to convey that meaning and could not have been so understood by the jury. It is always unsafe, as well as unfair to the trial judge, to select a single sentence from the body of his charge, sever it from the context and undertake to construe it by itself, without regard to what he
After having explained to the jury that the subject-matter oí the controversy was the looation of the division line between the John Cook survey on the northwest and the Frederick Deorsch on the southeast, he called their attention to the Jasper Ewing and other surveys constituting what is known as the “Drinker block of surveys,” embracing the two tracts above mentioned, and also to certain facts about which there was little or no controversy. Subsequently he referred to the testimony of both parties bearing on the location of the line in dispute. In that connection he said, among other things, “ the defendants also claim they have the testimony of Mr. Kutruff. I think perhaps there was another witness, — who he was I do not remember; — but Mr. Kutruff testifies that he was on the ground there and saw a birch stump some ten or twelve feet high. I do not remember of his saying that there were marks upon it. The defendants claim that there being a birch stump there, whether marked or not, would indicate that that was the point where the birch would be expected to be found. If there was a well marked line running to the birch stump at that point, anywhere near the official course and distance, the mere fact, that the birch was not marked as a corner, could not destroy the line. But as these four surveys were to have a common corner — that is, the John Miller, the Frederick Deorsch, the William Cook and the John Cook call for a common corner — and that corner was a birch, you would expect, and have a right to expect, that when the birch was found there upon the ground that there would have been marks upon it,” etc. He then instructed the- jury that if they found the common corner of the four tracts to be at the point claimed by the plaintiff, they must “ locate the southern boundary, or the division line between the John Cook and the Frederick Deorsch, by running the line, by its official course, with due variation, south 54 degrees west, between these surveys; and that would fix the division line between them. That is the law, as I understand it, and the fact that this hemlock corner may be where the defendants or where the plaintiff claims it to be, cannot change the location of the line, if you find the birch to have been where the plaintiff claims, where these two old lines intersect, if you find
The sixth specification alleges error, “ in giving undue prominence to the testimony of plaintiff’s witnesses, and thereby influenced the verdict of the jury.”
An examination of the entire charge has failed to make any
The seventh specification charges that the learned judge “ erred in leaving the bench and pointing, out, from the plaintiff’s chart, the plaintiff’s theory of location, and thereby unduly influencing the verdict of the jury in favor of the plaintiff.”
We are not aware of any rule of law or principle of judicial ethics by which the proper attitude of a trial judge, while engaged in charging the jury, can be either accurately or safely determined; nor have we been referred to any. In some cases it is doubtless dictated by considerations of convenience in explaining maps, charts, surveys, etc., to the jury, as was done in this case. When that is so, it may be safely left to the sound discretion of the judge himself. In all other cases, perhaps, it is purely a question of taste, and as such not reviewable. Be gustibus non est disputandum.
But it does not appear that the facts upon which this question arose have been brought upon the record by bill of exception. The specification is therefore dismissed.
We find nothing in the record that requires a reversal of the judgment.
Judgment affirmed.