59 Pa. 64 | Pa. | 1868
The opinion of the court was delivered, August 1st 1868, by
The judgment of the court below, non obstante veredicto, is objected to, because the facts upon which the reserved question arises do not appear in the record. A question of law cannot arise in a judicial sense without facts. The facts out of which the question springs must be seen in the record proper, or in the superadded statute record furnished by a bill of exceptions. This is quite as true in the case of reserved questions of law as in other cases, and has been stated in Irwin v. Wickersham, and Wilson v. Steamboat Tuscarora, 1 Casey 316 and 317, and in Winchester v. Bennet, 4 P. F. Smith 510. There are but three modes in which facts arising upon the evidence can find their way into the record — by the finding of a jury, which is a special verdict — by the agreement of the parties, called a case stated — and by the certificate of the court, contained in a bill of exceptions. It is the last mode which is directed by the statute in the case of reserved points. Of course disputed facts cannot be certified against the consent of counsel, but must be decided by the jury. But even then it is still in the power of the court to reserve a question by referring the disputed fact to the jury, and then by incorporating the finding in the bill of exceptions.
In looking into this record we find nothing there upon which the question arose whether the building was a new erection. The instruction to the jury was, that they must treat the lien as -good and find for the plaintiff, “ reserving the point as to whether this is or is not a lien under the evidence in the case; the verdict to be set aside and judgment for defendant non obstante veredicto, should the court be of opinion that there is no valid lien in the case.” To this the defendants excepted, but not the plaintiff; and when judgment was rendered for the defendants no exception was taken, and no facts certified upon the record. The judge filed an opinion, but this was not excepted to, and forms no part of the record. Doubtless the opinion contains a fair statement of the facts, but it is not certified as a bill of exceptions in form, or as its equivalent. We are also referred to what is printed as the judge’s notes of trial. They are not certified, and should we accept them still the question we are asked to decide is not specifically presented. The point reserved was in these words: “ whether this (to wit, the plaintiff’s claim), is or is not a lien under the evidence in the case.” This was a much broader question than the one argued, to wit, whether the building was such a new erection as became the subject of a lien. The claim might not
If the case stood as at common law there would be a sufficient cause of reversal on the ground that the judgment is repugnant to the verdict. But the 5th sect, of the Act of 28th March 1835, Purd. 338, pi. 16, extended to the several courts of Common Pleas of the state by the Act of 22d April 1863, Pamph. L. 554, confers the express power of reserving and deciding questions of law, and consequently of rendering a judgment non obstante veredicto. The legal presumption follows that the judgment is right. Res adjudicata pro veritate aecipitur. Omnia praesumuntur legitime facta donee probetur in contrarinm. For the correction of any error the statute gives a bill of exception. Without a bill of exception, therefore, we cannot examine into the alleged error, and the judgment below, though contrary to the verdict, must stand upon the express statute authority to render it. But taking the facts as stated in the paper-book, we think the learned judge was right, that the changes made in the mill did not create such a new erection as to subject it to a lien for work and materials. The authorities are marked by some diversities, yet when all summed up, lead to the conclusion that repairs and alterations of a building which do not fairly change its exterior into a new structure are incapable of conferring a lien. Driesbach v. Kellar, 2
Judgment affirmed.