Wilde v. Trainor

• Decision Date: 09 January 1869
• Citation: 59 Pa. 439
• Parties: Wilde <I>versus</I> Trainor <I>et al.</I>
• Court: Pennsylvania Supreme Court

59 Pa. 439

Wilde versus Trainor et al.

Supreme Court of Pennsylvania.

November 9, 1868.

January 9, 1869.

November 9th 1868.

Before THOMPSON, C. J., SHARSWOOD and WILLIAMS, JJ. READ and AGNEW, JJ., absent

Error to the District Court of Allegheny county: No. 92, to October and November Term 1868.

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J. S. Ferguson (with whom was N. P. Fetterman), for plaintiff in error.—The Married Woman's Act April 11th 1848, did not enable Mrs. Wilde to dispose, by will, of her separate property held by a trustee: The Pa. Co. for Ins. on Lives v. Foster, 11 Casey 134; Wright v. Brown, 8 Wright 224; Hay v. Mayer, 8 Watts 209. Her estate was conditional, defeasible upon breach of the condition: Bear v. Whisler, 7 Watts 149; Westenberger v. Reist, 1 Harris 598. The estate revested in the plaintiff by his entry, whether before or after the death of Mrs. Wilde: Hamilton v. Elliott, 5 S. & R. 386.

J. R. Large, for the defendants in error.

The opinion of the court was delivered, January 9th 1869, by SHARSWOOD, J.

This cause comes up from the judgment of the court below on certain points reserved on the trial. The power to make such reservation depends on the provisions of the Act of June 12th 1839, entitled "An act relating to the several courts in the county of Allegheny," Pamph. L. 262, by the 5th section of which it is declared that "It shall be lawful for any of the said judges, when he thinks it expedient, to reserve questions of law which may arise on the trial for the consideration and judgment of both of the judges of the said court sitting together, provided that either party shall have the right to a bill of exceptions to the opinion of the court as if the point had been ruled and decided on the trial of the cause."

There are two rules which are necessary to be observed in such reservations. The first is, that they can only be of pure questions of law. In order that such questions may be reserved, it is requisite that the facts should be agreed by the parties or found by the jury, for ex facto oritur jus: Clark v. Wilder, 1 Casey 314; Irwin v. Wickersham, Id. 316; Wilson v. Steamboat Tuscarora, Id. 317. 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: Winchester v. Bennett, 4 P. F. Smith 510.

It may no doubt also be a pure question of law whether there is any evidence at all to go to the jury on some fact essential to the plaintiff's case, or, if the plaintiff's case is admitted or conclusively established, on some fact essential to the defendant's defence.

The second rule is that the question or questions of law must be such as to rule the case. It is of course worse than useless to reserve every question of law which may arise in the course of a trial. The main object of a reserved point is to save the necessity of a second trial — the verdict of the jury on the facts, if adverse, precluding the point of law from arising. Thus, if the question reserved is whether there is any evidence to go to the jury, the verdict against the sufficiency of the proof disposes of the whole question. But the reservation of subordinate questions does not yield this or any other advantage, but tends only to embarrass and complicate the case. Indeed, I have always been of the opinion and acted upon it, that no point of law can be properly reserved, unless if that point be held in one way, the court would be bound to give a binding instruction to the jury to find a verdict for the plaintiff or for the defendant.

Judged by these rules, the reservation in this case was wrong. The court instructed the jury pro formâ to find for the plaintiff, if they believed the uncontradicted evidence in the cause, but reserved the questions submitted by the counsel on both sides. The verdict was for the plaintiff, but afterwards the court in banc entered judgment for the defendants on the questions of law reserved, non obstante veredicto.

There are no facts agreed or found in the record. There is a bill of exceptions to the judgment, and the judge's notes of trial are filed. We may presume that these notes are intended to bring up the evidence with the bill of exceptions, though it is a very loose and irregular practice.

We must consider, then, that these questions of law apply to the whole evidence, and they must show, in order to be effectual, that there was nothing to submit, but that the defendants were entitled on the whole case to a binding direction in their favor.

The questions submitted by the counsel on both sides, which are the points reserved, are, we presume, the points presented by them in writing. There are six in number — three...