53 Pa. Super. 324 | Pa. Super. Ct. | 1913
Opinion by
The plaintiff’s action was on a promissory note dated July 30, 1901, payable on demand. The maker died November 25, 1905. Suit was begun against his executor February 8, 1909. On the face of the note the action
In this state of the record two questions arise, the necessity of determining the second depending on the disposition of the first.
(1) Assuming that the record, as it stood at the close of the trial, disclosed no serious trial errors, was the learned court warranted in entering judgment for the defendant n. o. v.? To make a prima facie case the burden was on the plaintiff to produce evidence sufficient to remove the bar of the statute. The single witness, whose testi
(2) But the plaintiff appellant further and chiefly complains of the action of the learned trial judge in refusing to admit the testimony of Margaret Pennell, wife of the plaintiff, for the purpose already stated, and holding her to be an incompetent witness. It will be observed that the precise fact as to which she proposed to testify was not an occurrence in the lifetime of the maker of the note. The fact which her testimony was to establish was that she had seen the note in suit shortly after the death of the maker, and the further fact that when she then saw it, it was in exactly the same condition in which it appeared at the trial. The theory upon which the learned court below held her to be incompetent, as appears in his opinion, is because the proof
The judgment then must be reversed. But we cannot agree with the able counsel for the appellee that this must result in entering a judgment for the plaintiff on the verdict. We have already shown that the record as now made up contains no evidence to support the plaintiff’s verdict and no judgment in his favor could be entered. If the plaintiff must do battle to defend a judgment on a verdict in his favor, he is entitled to have that verdict as the result of a trial where he has been permitted to introduce all the testimony in support of his claim that is available. The situation is practically the same as if
What we have said as to the second assignment of error applies to the fourth and fifth, and they with the second are sustained.
Judgment reversed and a venire facias de novo awarded.