Commonwealth v. McDowell
| Decision Date | 25 March 1878 |
| Citation | 86 Pa. 377 |
| Parties | Commonwealth, to use of Assignees of Dimes Saving Fund, <I>versus</I> McDowell. |
| Court | Pennsylvania Supreme Court |
Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and TRUNKEY, JJ. WOODWARD; J., absent
Error to the Court of Common Pleas of Lehigh county: Of January Term 1878, No. 229.
Edward Harvey and C. J. Erdman, for plaintiffs in error.—The question reserved was a mixed one of law and fact, and was therefore improperly reserved. If a point of law be reserved, it must be done by stating, on the record, the facts on which it arises, without which judgment cannot be entered non obstante veredicto. In order to enter such judgment, the judge below cannot, himself, draw conclusions of fact from the evidence: these are to be determined by a jury or agreement of the parties: Winchester v. Bennett, 4 P. F. Smith 510; Wilde v. Trainor, 9 Id. 439; Barwell v. Wirth, 11 Id. 133; Ferguson v. Wright, 11 Id. 258. A reserved point can only be of a pure question of law: Campbell v. O'Neill, 14 P. F. Smith 290. Facts arising upon evidence can appear only on record by special verdict, case stated, or bill of exceptions: Willard's Appeal, 15 P. F. Smith 64.
R. E. Wright & Son and E. J. Fox, for defendant in error.— In Miller v. Hershey, 9 P. F. Smith 67, Judge AGNEW, in commenting upon the question of the manner of reserving points, says: "There are but three modes in which facts, arising upon the evidence, can find their way into the record: first, by the finding of a jury, which is a special verdict; second, by agreement of the parties, called a case stated; and third, by the certificate of the court, contained in a bill of exceptions." In the case at bar, when the court reserved the questions arising in this case, both parties excepted to the instructions which the court had given to the jury, and asked that "the notes of testimony be reduced to writing, and a bill sealed, for both parties." This was done; and under this bill of exceptions all the testimony has been sent up, with the record, certified to by the learned judge who tried the case below.
What constitutes a good reservation of a question of law arising on the trial of an issue of fact under the Acts of 28th March 1835, Pamph. L. 90, and 22d April 1863, Pamph. L. 554, has been frequently before the court. The rules established are not arbitrary ones, but arise from the necessity of maintaining the distinction between the respective provinces of the court and jury. Hence in order to a good reservation the facts on which the question arises must be found by the jury or agreed by the parties. They must appear on the record by the verdict or agreement. The judge cannot himself draw conclusions of fact from the evidence: Irwin v. Wickersham, 1 Casey 316; Winchester v. Bennett, 4 P. F. Smith 510. Hence the reserved question must be a pure question...
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