Wilson v. Keller , 195 Pa. 98 ( 1900 )

Opinion by

Mr. Justice Mitchell,

The appellant in printing his paper-book has omitted part of the evidence which was before the referee and the court below. This was in clear disregard of the rules of court. Appellant did not consider the omitted portions material, and they may not be so, but among them is part of the cross-examination of the appellant himself. Appellee objects to this omission and the court is without the means of knowing whether the omitted testimony is material or not.

There are no doubt many cases where the bulk of the paper-books can be substantially reduced, to the advantage and convenience of court and counsel, by the omission of evidence relating to matters entirely disconnected with any question involved in the appeal. In such cases a very convenient practice followed in some states is to indicate the omission in the following form: “ Here the plaintiff (or defendant) gave evidence tending to prove . . . .” specifying the subject of the omitted evidence distinctly and in positive terms. This practice would be recognized by the-court as convenient. But it should rest on the agreement of counsel for both parties that the omitted portions are immaterial or irrelevant to all the questions involved in this court. Without such agreement, counsel may omit matters which the counsel of the other party deem material, and the court not being in position to decide will then •be obliged to enforce the rule strictly, as we must do in the present case.

Appellee has also called our attention to the disregard of the rule requiring the appellant to file in the court from which the appeal is taken, a statement of errors alleged to have been made by the decree appealed from. Compliance with this rule is not a mere formality, the want of which can be cured at any subsequent time. It is true we have allowed the statement to be filed nunc pro tunc after the case- is reached on our argument list (see Barlott v. Forney, 187 Pa. 801), but only in exceptional cases and not then as a matter of right. The rule was intended for enforcement, and some of the advantages of it are pointed out by the appellee, especially in the timely notice it gives him the opportunity of obtaining of the grounds of appeal he will be required to meet on the argument here.

We affirm this decree for disregard of the rules of court with less reluctance as the main ground on which the appeal is based is plainly untenable. It is admitted that there was a partnership, and that on dissolution the appellant' became the liquidating partner. Under these circumstances his duty to account was imperative. The alleged acts and fraudulent representations of the plaintiff may affeet the final result, but cannot dispense with the accounting.

Decree affirmed with costs.