McCandless v. McWha

• Decision Date: 01 March 1853
• Citation: 20 Pa. 183
• Parties: McCandless <I>versus</I> McWha.
• Court: Pennsylvania Supreme Court

20 Pa. 183

McCandless versus McWha.

Supreme Court of Pennsylvania.

March 1853.

ERROR to the Common Pleas of Beaver county.

Cunningham, for plaintiff.

Fetterman, for defendant.

The opinion of the Court was delivered, March, 1853, by LOWRIE, J.

We continued this cause immediately after the hearing of the motion, and promised, at our earliest convenience, to indicate, in writing, the remedy which is appropriate to such a case. The question has, at present, considerable practical importance; because many cases are so situated, occasioned by the death and resignation of judges and the expiration of their term of office.

In our practice, jury trials are had before the Court, as such, and not before a judge merely, as at Nisi Prius. Exceptions to evidence and to the charge, taken at the trial, are, therefore, part of the proceedings of the Court, and, for the purposes of error, ought to be part of the record; and the Court, and not merely an individual judge, is bound to see that they are sealed, if the party insisting upon them make his demand within the proper time, according to the practice of the Court. If it be not thus made the exception ought to be regarded as abandoned, unless the delay be properly accounted for to the satisfaction of the Court. Of course, the duty is properly devolved upon the presiding judge, while in office, and he may perform it as well at chambers as in banc; but, if his functions terminate before it is done, then the duty devolves on the Court.

The Court never dies nor resigns, though its officers may; and its duties are neither satisfied nor extinguished by a change of its functionaries. The departing judges' unperformed duties devolve upon the successors. How shall they perform them? They have not the personal knowledge of the facts which their predecessor had; but this does not hinder them from supplying the defects according to the ordinary practice in allowing amendments. And as the bill of exceptions could be sealed at chambers, so its want may be supplied by the Court or by its presiding judge. In the execution of this duty there is the same discretion as to the mode of proceeding, as in the ordinary cases of amendments. The counsel applying for it ought to prepare his bills of exception according to the facts, and annex them to a petition to have it supplied. His petition ought to account for the delay in sealing them, to aver the correctness of the bills annexed, and that they were taken at the trial...