Winchester v. Bennett
| Decision Date | 18 March 1867 |
| Citation | 54 Pa. 510 |
| Parties | Winchester <I>versus</I> Bennett and Davis. |
| Court | Pennsylvania Supreme Court |
Before WOODWARD, C. J., THOMPSON, STRONG and AGNEW, JJ. READ, J., sick
Error to the Court of Common Pleas of Luzerne county.
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L. Hakes, for plaintiff in error.
S. Woodward and G. M. Harding, for defendants in error.— Morgan v. Biddle, 1 Yeates 3; Luchenbach v. Brickenstein, 5 W. & S. 149; Haynes v. Hunsicker, 2 Casey 60.
The opinion of the court was delivered, March 18th 1867, by STRONG, J.
There is real difficulty in this case arising from the fact that the record does not show precisely what legal question was reserved. In seeking for it the only guide we have is the opinion of the court given when judgment was entered for the defendants non obstante veredicto, and all that we find there is a statement of the facts in evidence, not as found by the jury, and not as agreed to by the parties, but as the judge thought they substantially were. After thus reciting the case as he understood it, he added "the plaintiff contended that it was a sale of personal property, and that the evidence showed no such change of possession as would justify the purchaser in claiming adversely to execution-creditors, and that under the undisputed evidence it presented a case of fraud in law." He then proceeded to state that the court reserved that point, ruling it pro formâ with the plaintiff, subject to the agreement of the parties to enter judgment for the defendant non obstante veredicto, if the view of the court upon the law upon argument thereafter should be different." All this may have been understood at the trial, but it shows nothing definite to us. As ought to have been expected, the argument before us has been a controversy in regard to the facts, and we have been asked to look at the evidence, rather than at any state of facts established by verdict or by agreement. If the transaction between Fender and Mitchell and Bennett was as the court inferred it to have been, a license to Bennett to take coal from Fender's land, the judge was undoubtedly right in the principles of law which he applied. But how could he know that such was the character of the arrangement? Certainly in no way, except by his drawing conclusions of fact from the evidence. Nothing on the record shows it; even the evidence, as we have it, is not certified. And if it be taken as stated in the paper-books, it is by no means certain that under the arrangement, Bennett became the owner of the coal mined before it was taken out of the shaft and delivered at the stocking-ground. Taking the order...
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... ... from evidence and enter judgment thereon non obstante ... veredicto: Wilde v. Trainor, 59 Pa. 439; Miller ... v. Hershey, 59 Pa. 64; Winchester v. Bennett, ... 54 Pa. 510; Inquirer Co. v. Rice, 106 Pa. 623; ... Buckley v. Duff, 111 Pa. 223; Campbell v ... O'Neill, 64 Pa. 290; Keifer v ... ...
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...v. Duff, 111 Pa. 223. The reservation must not be of a mixed question of law and fact: Commonwealth v. McDowell, 86 Pa. 377; Winchester v. Bennett, 54 Pa. 510; and, in on it, the testimony cannot be considered, and conclusions drawn therefrom: Central Bank v. Earley, 113 Pa. 477; Henry v. H......
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... ... Wilson v. Steamboat Tuscarora, 25 Pa. 317; Henry ... v. Heilman, 114 Pa. 499; Winchester v. Bennett, ... 54 Pa. 510; Wilde v. Trainor, 59 Pa. 439; Com. v ... McDowell, 86 Pa. 377 ... The ... action of the president judge, ... ...