Burkholder v. Stahl
| Citation | 58 Pa. 371 |
| Parties | Burkholder <I>et al. versus</I> Stahl <I>et al.</I> |
| Decision Date | 06 July 1869 |
| Court | United States State Supreme Court of Pennsylvania |
Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.
Error to the Court of Common Pleas of Somerset county: to May Term 1869. No. 76.
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J. Hughes (with whom were W. H. Postlethwaite and J. O. Kimmell), for plaintiffs in error.
M. H. Koontz, for defendants in error, insisted that the assignments of error were null for want of compliance with the rules of court.
The opinion of the court was delivered, July 6th 1869, by THOMPSON, C. J.
The defendants in error in effect demur to the pleadings in this writ of error, for want of conformity to the rules of court providing for the assignment of errors: 6 Harris 578; and claim that they are not bound to notice them, on the authority of the last clause of Rule 8, which says, "any assignment of error not according to this and the last rule will be held the same as none." These rules require that in assigning errors to the charge of the judge, they are to be in totidem verbis, and that when "to the admission or rejection of testimony the specification must quote the full substance of the bill of exceptions, or copy of the bill in immediate connection with the specification."
The objections thus made to the several assignments of error in this case, call upon us to interpret and enforce the rules thus invoked. If they deserve, for anything which has been flagrantly neglected, to be visited with a disregard of the assignments themselves, it is a fault not to be charged to the rules, but to a neglect of conformity to their requirements. In Thompson v. McConnell, 1 Grant 396, the rules were enforced upon similar objections, and the profession were notified, "that hereafter errors not assigned as required by the rules to be found in the appendix to 6th Harris, will be held the same as no assignments at all." So in Daniel v. Daniel, 11 Harris 198, and in Bull's Appeal, 12 Id. 286. Thus has timely warning been given that the rules of practice established by this court will be insisted on. We repeat that warning again, with a very full determination to enforce the subjects of them. That we have not always enforced the rules, has resulted from a reluctance to see injustice done if it might result therefrom, rather than from any disposition to relax them, as experience has shown they are not only a great convenience, but a necessity in the increase of business thrown upon this court by the increasing population and wealth of the country. We will now proceed to ascertain whether the objections made to the assignments of error in this case are well founded or otherwise.
The objection to the 1st, 3d and 4th assignments is that they specify error on part of the court in NOT charging the jury in a particular way, although it appears no request was made so to charge.
This is rather a question of practice than of express rule, but it is so well established in numerous reported decisions, and in the daily administration of the law of the court, that error cannot be assigned of what was NOT said by the judge merely, and it is as much a fault to assign such errors as if expressly prohibited by rules in the most explicit terms. A few of the latest authorities on the point will be found in 6 Wright 143 and 493, and 5 P. F. Smith 407. This rule ought never to be transgressed excepting in very flagrant omissions of the court, plainly operating positively to mislead the jury.
The 2d assignment of error is also a wide departure from the rule requiring the portion of the charge claimed to be error to be quoted in hæc verba. The portion quoted here is not in hæc verba, nor substantially correct. It is therefore within Rule 7th, 6 Harris supra, and not to be specially noticed.
The 5th assignment is also deficient; the point, the subject of the exception, is not embraced in it. When the assignment of error is upon an exception to the charge in answering, or refusing, or omitting to answer a point, the assignment of the error should embrace the point in the same manner as it is required to embrace the bill of exception when the error is to the rejection or admission of evidence. The assignment of error should be substantially thus: "The court erred in answering (or in refusing or omitting to answer, as the case may be), the first point of the plaintiff or defendant, which point is as follows, to wit:" Here the point should appear in full, with the answer, if any. That is wholly omitted in this assignment, and also the 6th and 7th assignments of error. They are all in the same category, and are not entitled to be noticed severally.
If there were no rules on the subject at all, it seems to me it would occur to the learned professors of the law, that this would be necessary in order to constitute a good assignment of error. Proceedings in a court of error very closely assimilate themselves to proceedings in courts of original jurisdiction. As in the latter, the appropriate writ for the commencement of an action only states in a general way the cause of action or complaint, leaving it to be more specifically set out in the narr.; so in the former, the writ in a very general way recites that, "as it is said, manifest error hath intervened, to the great damage of the said plaintiff in error," the command to the judges in the court below, is to send up the "record, process and all things touching the same," "that being inspected, we may further cause to be done, what of right, and according to our laws and customs ought." Although this writ is to the judges, yet it is to be served on the adverse party notifying him to appear, &c. The cause of complaint is thus very general, and it is left to the assignments of error to specify the cause of complaint, as a narr. does the cause of action in other courts. When that is done, and errors are assigned, the defendant's plea is in nullo est erratum. The case in error is then at issue.
Like a narr., therefore, the assignment of error must be complete in itself: that is, self-sustaining. Whatever is part of it must be parcel of it. If the error be in answering a point, the point must be in the assignment of error in order to see what the error is. It would...
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