27 Pa. Super. 417 | Pa. Super. Ct. | 1905
Opinion by
The praecipe in this case particularly described the land in dispute by reciting all of its ten courses. Starting from a fixed point and following the building and fence lines on the ground to the place of beginning, and also by giving the ad-joiners of public streets and owners. The distances between all designated points are given in feet and inches so that its form can be clearly and definitely circumscribed. The ver'diet returned by the jury was “ in favor of the plaintiff and against the defendant the disputed land between two propérties from a point north west King street 57' 37 " to south east corner of bake house, thence north to a point 48' 95 " south from Grant street south east corner of stable.” This verdict
The verdict is not a finding for the plaintiff generally for the land in dispute, but is limited by tbe description incorporated in it, and when applied to the recital contained in the praecipe it is a meaningless and impossible description of any body of land. We are powerless to amend it for the reason that the defects are substantial and not merely formal; it is not only uncertain, but is incapable of being reduced to a certainty.
The Act of March 14, 1872, P. L. 25, does not warrant such a radical change of a verdict, under the guise of an amendment, as would be necessary to give this verdict an intelligible construction. To make it effective we would be obliged to guess at the intention of the jury and substitute our judgment for theirs. The verdict could have been amended or entirely changed while it was yet within the control of the jury and court; but this was not done, and we are confined to the one as returned and accepted by the court, as the final and conclusive decision of the jury : Harris v. Pittsburg etc. Ry. Co., 11 Pa. Superior Ct. 6; 5 P. & L. Dig. of Dec. 7718-22. The third and sixth assignments of error are sustained.
The refusal of the court to grant a new trial rests as a rule in the sound discretion of the court and will not be reviewed on appeal. For this principle McKenney v. Fawcett, 138 Pa. 344, stands as a favorite authority. The fault with this record lies as much in entering judgment as in refusing to set it aside and grant another trial. Smith v. Times Publishing Company, 178 Pa. 481, and Mix v. North American Company, 209 Pa. 686; recognize the necessity for the review of judgments entered on verdicts that are not proper, even when they have been regarded
The judgment is reversed and a venire facias de novo awarded.