Buckley v. Duff & Sons , 111 Pa. 223 ( 1886 )

Chief Justice Mercur

delivered the opinion of the court, January 4th, 1886.

A valid reservation of a question of law on the trial of an issue of fact must be a question of law solely. It cannot be of a question of law and fact mingled. The effect' of such a reservation would be to transfer to the court that ascertainment of facts which belongs to the jury. The facts must be found by the jury or agreed upon by the parties: Winchester v. Bennett, 4 P. F. S., 510; Campbell v. O’Neill, 14 Id., 290; Robinson v. Myers, 17 Id., 18; Commonwealth v. McDowell, 5 Norris, 377.

To authorize the court to enter judgment non obstante veredicto, the record must show the point and the facts on which it arises: Irwin v. Wickersham, 1 Casey, 316. The question reserved must be distinctly put on the record. The parties have a right to except not only to the judgment on the reserved question, but also to the manner in which the question itself be reserved. The specific reservation should therefore be made a matter of record at the time of the reservation: Ferguson v. Wright, 11 P. F. S., 258; Wilde v. Trainor, 9 Id., 439; Patton v. P. C. & St. L. Railway Co., 15 Norris, 169; Elkins v. Susq. Mat. Fire Ins. Co., 14 Pittsburgh L. Jour., 420; Inquirer Printing Co., 10 Out., 623.

The omission to make the point reserved a matter of record is not cured by a statement of the reservation in the opinion of the court filed long afterwards, on entering judgment. That opinion is no part of the record proper.

In the present case the record is fatally defective. In the charge of the court to the jury the learned judge says: “ There is a little law question, although I have not much doubt about it myself, still the learned counsel want to be heard on it, and I will take your verdict for the plaintiff subject to the opinion of the court on the question of law reserved.”

What that question of law was, or on what questions of fact it arose, the record wholly fails to show. No search thereof could give the slightest information. A reservation, whether under all the evidence in the cause the plaintiff is entitled to recover, is bad: Wilson v. Steamboat Tuscarora, 1 Casey, 317; Wilde v. Trainor, supra.

It is true in the opinion of the court, on entering judgment, filed more than eighteen months after verdict rendered, .the transaction on which the question of law was reserved is stated. This, as wé have already shown, is clearly insufficient to authorize the entry of judgment non obstante veredicto.

Judgment reversed, and a venire facias de novo awarded.