Pyle v. Finnessy, 118 A. 568

Pyle v. Finnessy

118 A. 568

Pa.

1922

Check Treatment

Opinion by

Mr. Justice Sadler,

Plaintiff, owner of certain land by deed bearing date July 26, 1919, brought ejectment to recover against the defendant who held possession under two leases *56made for definite terms, then expirеd, and “so long thereafter as oil or gas can be produced in paying quantities.” The former’s grantor had conveyed, subject to rentals in the four wells drilled upon the land, and these royalties had been purchased and are owned by the defendant lessee. It was claimed thаt the operations were conducted occasionally, but without financial success, and by reason thereof a forfeiture was worked, of which notice was duly given, and possеssion of the land, encumbered with pipe lines and tanks, was demanded. The refusal of the lessee to remove led to this action of ejectment, and the issue framed raised the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍questiоn as to whether the production was profitable; and, even if not, whether the plaintiff cоuld reenter in view of the fact that the only party interested in the rentals was the defendant, whо had acquired the ownership of the same. A trial resulted in a verdict for the plaintiff, and the subsequent entry of judgment, upon which this appeal is based. Thirteen errors have been assigned, whiсh complain of the admission of testimony, the charge of the court, the answers to pоints and the refusal of defendant’s motion for judgment non obstante veredicto; but an examinatiоn shows none which brings properly before us a matter for review.

Numbers nine to twelve inclusive сomplain of the instructions to the jury. Though a general exception was taken thereto, no request was made to have the charge filed as part of the record, and, under thе many decisions of this court a consideration of the errors complained of cannot be had: Allegro v. Rural Valley Mut. Fire Ins. Co., 268 Pa. 333; Sikorski v. P. & R. Ry. Co., 260 Pa. 243. Even if this duty had been complied with, the alleged mistakes wеre not pointed out before the jury retired, and no opportunity was given the court below to correct any statement which ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍might have been improperly made. Under such circumstances, only basic or fundamental errors can be now considered, — and none apрear. To state, as here, that the complaints will be subse*57quently averred, is not sufficient, as it makes impossible a correction before a decision by the jury.

The same criticism is to bе made of assignments three to eight inclusive, based on answers to points, or refusal thereof. As in the case of the charge, a general ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍exception is not sufficient; they must be brought upon the record in the proper way if t'he ruling of the court below is to be reviewed: Ward v. Bаbbitt, 270 Pa. 370; Stine v. P. R. R. Co., 271 Pa. 115; Keck v. Ry., 271 Pa. 479; Mooney v. Kinder, 271 Pa. 485.

Number thirteen is directed to the refusal to enter judgment n. o. v. When the overruling of such a motion аppears, a review ordinarily may be had, though no exception be taken, under the рrovisions of section 6 of the Act of May 11, 1911, P. L. 279 (Knobeloch v. Ry. Co., 266 Pa. 140), but the difficulty here presented arises from the failure to make the application for judgment in the court below, as directed by the Act of April 22,1905, P. L. 286, which provides that it shall be presented “within the time prescribed for moving for a new trial.” The record shows this was not done in the present case, which was tried in January of 1921, the motion for a new trial filed on January 29th, and that for ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍judgment n. o. v. not until December 3d following, — two dаys before the opinion finally disposing of the case was recorded, though dated Novеmber 29th. By paper presented since argument, it would seem this motion was a substitute for an eаrlier one, but whether the former was in compliance with the requirements of the act is not disсlosed. Under such circumstances, the error complained of is not properly befоre us.

Assignments one and two are based upon the testimony of witnesses who gave evidence of the cessation of operation of the wells prior to the date of the purchase of the property by the plaintiff. Without1 discussing the relevancy, it is sufficient to note that the evidence complained of was received before objection was interposed, and no motion to strike it from the record appears: *58Broadnax v. C. & S. R. R. Co., 157 Pa. 140; Schweitzer v. Williams, 43 Pa. Superior Ct. 202; cf. Forster v. Rogers Bros., 247 Pa. 54. Further, a number of witnesses gave evidence as to the same fact without ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍complaint, and no harm was done the defendant: Hollidaysburg M. & F. Seminary Co. v. Gray, 45 Pa. Superior Ct. 426.

In this state of the record, we are not called upon to decide аs to the various matters suggested. However, we have 'considered all of the arguments advanced, and are convinced that a fair and impartial trial was had, and a just conclusion upon the merits of the controversy reached.

The assignments of error are overruled and the judgment is affirmed.