Yoast v. Beatty

12 Pa. Super. 219 | Pa. Super. Ct. | 1900

Opinion by

Rige, P. J.,

The matters assigned for error are the refusal of the court to direct a verdict for the defendant and the direction to render a verdict for the plaintiff. The plaintiff moved to quash the appeal for several reasons. We need notice but two. They are, first, because the stenographer’s report of the evidence is not authenticated in any way by the trial judge; second, because the record does not show affirmatively that the charge was excepted to and the court requested to file it before verdict.

The mode of bringing upon the record for the purposes of review the evidence and the charge of the court, as it is affect-ed by the laws authorizing the appointment of stenographers, has received much attention in recent years. More frequently the subject has been discussed with special reference to the charge, but a careful perusal of the decisions will show that the supervisory power and duty of the judge extend generally to that part of the record, whether charge or notes of evidence, made up by the stenographer.

In the case of Com. v. Arnold, 161 Pa. 320, where the whole subject was elaborately considered, Mr. Justice Mitchell said: “We are not disposed to stand on mere forms. That the record is true and the judge so declares is the substance, the form is not very material. He may so declare by formal bills with his seal, or he may adopt the notes of the stenographer as verity, and so declare by his certificate at the end of the stenographic report certifying to its correctness as a whole. If he chooses to multiply his certificate by affixing one with his seal appended to every exception to the admission or rejection of evidence, that certainly will not affect the verity of the record. But the distinct assent of the judicial mind to the truth of that part of the record made up by the stenographer must appear of record by the certificate of the judge under his own hand. He may make as many certificates as he pleases, but he must make at least one which discloses his belief that the stenographic notes are verity and he so declares.”

This evidently applies to the stenographer’s transcript of the evidence as well as to his report of the charge. Indeed, the question distinctly raised in that case was as to the duty of the judge to certify to the former, and the conclusion upon the general question was, “that the stenographer’s notes of evidence, exceptions, and the charge, when filed of record, should be certified by the signature of the judge.” See also Connell v. O’Neil, 154 Pa. 582, Com. v. Fitzpatrick, 1 Pa. Superior Ct. 518, Heyer v. Piano Co., 6 Pa. Superior Ct. 504, Stout v. Quinn, 9 Pa. Superior Ct. 179, Woodward v. Heist, 180 Pa. 161, and Harris v. Traction Co., 180 Pa. 184. In the last cited case the stenographer’s certificate, “ that the foregoing notes of testimony are a true transcript from my shorthand notes taken in the case,” was at the end of his report of the trial, which included not only the evidence but the charge, and under this certificate was written the word, “Approved,” to which the trial judge added his signature. This was held not to be a proper authentication of the charge and the appeal was quashed. The case was very much like the present. Here, at the end of what purports to be the stenographer’s report of the trial, including the evidence and the charge of the court, appears the following: “ Charge approved and ordered filed.” This is signed by the trial judge and is the only authentication by him of what precedes. It is suggested that.there were good reasons why he could not certify that it was a complete and correct report of the evidence, because, says counsel, it shows on its face that certain documents and writings offered and read in evidence are merely noted and not transcribed at length. It is not worth while to speculate as to the reasons which influenced the judge to word his certificate as he did, nor to discuss the sufficiency of the reasons suggested. It is enough for present purposes to say, that by no ingenuity of reasoning can the certificate above quoted be construed as the judge’s approval or authentication of the stenographer’s report of the evidence. For aught we know the omission may have been intentional, as was the case in Smith v. Times Publishing Co., 178 Pa. 481, and as was suggested in Harris v. Traction Co., supra. At all events the special and restrictive language of the order forbids the implication that more was intended than an approval of the report of the charge and a direction that it be filed.

Manifestly, the correctness of the instructions assigned for error in the present case cannot be determined without an examination of the evidence, and as the evidence is not properly on the record the assignments cannot be considered: Connell v. O’Neil, supra. It follows that the judgment must be affirmed or the appeal quashed.

The plaintiff’s motion is allowed and the appeal is quashed.