Wheeler v. Winn

• Decision Date: 17 October 1866
• Citation: 53 Pa. 122
• Parties: Wheeler and West <I>versus</I> Winn.
• Court: Pennsylvania Supreme Court

53 Pa. 122

Wheeler and West versus Winn.

Supreme Court of Pennsylvania.

October 17, 1866.

ERROR to the Court of Common Pleas of Mifflin county.

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J. Alexander, for plaintiffs in error, cited Dikeman v. Parrish, 6 Barr 210; Troutman v. May, 9 Casey 455; Foust v. Ross, 1 W. & S. 501; Shearer v. Woodburn, 10 Barr 512; Groft v. Weak land, 10 Casey 304; Dehaven v. Landell, 7 Id. 120.

A. Reed, for defendant in error, cited McKeen v. Delaney, 5 Cranch 22; Miller v. Hale, 2 Casey 432.

The opinion of the court was delivered, October 17th 1866, by WOODWARD, C. J.

The material questions in this cause arise upon the assignments of error to the charge of the court below; but it is denied that the plaintiffs have a right to assign these errors, because they neglected to except to the charge. It appears from the record that both parties submitted points in writing to the judge, and the counsel for the plaintiffs signed and presented also a paper in the following words:

"The court is respectfully requested to reduce their entire charge to writing at the time of the delivery thereof to the jury, and to file the same of record forthwith in this cause, according to the provisions of the Act of Assembly in such case made and provided."

The charge was accordingly written out and filed, but no exception in form was tendered or noted. The first question for us, therefore, is, whether an entire charge, so brought upon the record, is liable to assignments of error.

At common law, a writ of error might be had, either for an error apparent on the record, or for an error in fact, but it lay not for an error in law not appearing on the record; and of course, where the plaintiff or defendant alleged anything ore tenus which was overruled by the judge, this could not be assigned for error, as it did not appear on the record, and not being an error in fact, but in law, the party was remediless.

To remedy this evil, the stat. 13 Edw. 1, ch. xxxi., gave the bill of exceptions to any one that is impleaded before any of the justices, and who doth allege an exception, praying that the justices will allow it: Roberts's Digest of Statutes 92.

The terms of this statute, it will be observed, were very general; but a bill of exceptions under it has been described as founded on some objection in point of law to the opinion and direction of the court, either as to the competency of witnesses, the admissibility of evidence or the legal effect of it, or some matter of law arising upon facts not denied, in which either party is overruled by the court. If such bill be tendered, and the exceptions are truly stated in it, the judges ought to set their seal in testimony that such exceptions were taken at the trial; but if the bill contain matters false or untruly stated, or matters wherein the party was not overruled, the judges ought to refuse to affix their seals. A bill of exceptions is not to draw the whole matter into examination again; it is only for a single point, and the truth of it can never be controverted after the bill is sealed. The nature of the thing requires that the exception should be reduced to writing when taken and disallowed, like a special verdict or a demurrer to evidence. It is not necessary, indeed, that the bill should be drawn up in form, but the substance must be reduced to writing while the thing is transacting. If the exception be not stated in writing, and tendered at the trial, it is waived, and the party shall not resort back to his exception after verdict against him. For perhaps if he had stood upon his exception, the other party need not have put the cause upon that point, but might have offered other testimony: Wright v. Sharp, 1 Salk. 288; 2 Tidd's Practice 788; Roberts's Dig. 94.

A bill of exceptions to the charge of the court may be tendered at any time before the jury have delivered their verdict in open court: Jones v. Insurance Co., 1 Binn. 38. A plaintiff in error may assign error in an opinion on any point material to the issue appearing on the bill of exceptions, although it was not particularized in stating the exceptions below: The Phœnix Ins. Co. v. Pratt, 2 Binn. 308. And it was said by Yeates, J., in Downing v. Baldwin, 1 S. & R. 304, that the statute 13 Edw. 1 gave the bill of exceptions in order that the points determined should be introduced into the record, and be decided on by a court of error.

So much for the English statute, which contemplates a bill of exception as the only means of bringing the points of law ruled by an inferior court upon the record for purposes of review in a court of error. But on the 24th February 1806, our legislature, without superseding the bill of exceptions, provided still another practice for bringing legal opinions upon the record. That act (see Purd. 807) provided that the judge who delivers the opinion of the court shall, if either party by himself or counsel requires it, "reduce the opinion so given with the reasons therefor to writing, and file the same of record in the cause." That this act embraces charges delivered to juries as well as what are more technically called opinions, is shown by the case of Downing v. Baldwin, 1 S. & R. 300, which was, like the case before us, an instance of a charge filed at the request of counsel, but no exception taken to it, and the language of Chief Justice Tilghman in respect of it is worth quoting. "It has been strenuously argued," said the Chief Justice, "that this court can take no notice of the judge's charge, because it has not been brought on the record by a bill of exceptions. The Act of Assembly directs that in all cases in which the opinion of the court shall be delivered, if either party require it, it shall be the duty of the judges to reduce the opinion so given with the reasons therefor to writing, and file the same of record in the cause. The act does not say what shall be the consequence of this; it makes no mention of a writ of error or a bill of exceptions. But it is contended that it was not meant that any error in an opinion filed of record should be taken advantage of in any other manner than by a bill of exceptions. This construction has never yet been put on the act. The point indeed, has never been made, but has frequently been taken for granted both by court and counsel, that any error in an opinion filed of record may be taken advantage of on a writ of error without a bill of exceptions, and, upon full consideration, I am of opinion that the practice which has taken place is according to the true meaning of the Act of Assembly. The reason of introducing the bill of exceptions was, that the opinion excepted to could not otherwise appear upon the record. The statute does not say that a writ of error shall lie on the bill of exceptions. But, inasmuch as a writ of error lies at common law, and the effect of it is to bring the record before the superior court, the judges, finding the bill of exceptions upon the record, are bound to take notice of it." And to these very pertinent observations of Judge Tilghman, I may venture to add, that the judges, on return of a writ of error, finding upon the record palpable errors in a charge written and filed under the statute, are equally bound to take notice of them as if they were contained in a bill of exceptions. This conclusion results necessarily out of the language of the act, and of the judicial construction of it. In Bassler v. Niesly, 1 S. & R. 432...