Mifflin Township Poor District v. Schuylkill County Poor District , 1908 Pa. Super. LEXIS 336 ( 1908 )

Opinion by

Rice, P. J.,

Upon the allowance of the court of quarter sessions of Columbia county an appeal was entered by the directors of the poor of Schuylkill county from an order of removal of Harvey Gearhart from the poor district of Mifflin township in Columbia county to the poor district of the county of Schuylkill. Upon April 1, 1907, the court filed an opinion. setting forth its findings of fact, conclusions of law and answers to the written points that had been submitted by the parties, and concluding with an order affirming the order of removal and directing the Schulykill county poor district to pay the costs. On April 3, 1907, the following exceptions were filed on behalf of the latter district: “1st. The opinion is contrary to law. 2d. The opinion is contrary to the law in the case.” On April 19, 1907, the same day that the appeal was taken to this court, specific exceptions were filed to certain of the court’s findings and answers to the points. These exceptions referred to the findings and answers to the points by their respective numbers, and set forth the same in substance, and, in some instances, in the exact words of the court. At the end of the paper appears the following: “Now, April 15th, 1907, upon request of counsel for the poor district of Schuylkill County, the exceptions above taken are hereby noted, and bills sealed in each instance for the poor district of Schuylkill. By the Court, Charles C. Evans, P. J. [Seal].” Referring, however, to the body of the paper we find that following each of five of the exceptions there is a note in these or equivalent words signed and sealed by the judge: “Refused, exception noted and bill sealed, Oct. 16, 1907,” and that following each of the other exceptions there is a note signed and sealed by the judge, in these or similar words: “Assignment of error is overruled. Exception noted and bill sealed, Oct. 8, 1907.” The later dates, it will be noticed, were more than six months after the order appealed from was made, and more than five months after the paper was filed and the appeal was taken. '

The statute giving the right to have the decisions of the quarter sessions in such case reviewed in the appellate court provides, that “upon the hearing and argument .... it shall be lawful for either of the parties to the issue to except to any decision of the court upon any point of evidence or law, which exception shall be noted by the court and filed of record as in civil cases, and a writ of error (now appeal) to the Supreme Court (now to the Superior Court) may be taken by either party to the judgment of the court with like effect as in civil cases:” Act of March 16, 1868, P. L. 46. A “point of evidence,” in the contemplation of this statute, is whether a witness offered is competent or whether evidence offered is competent or relevant as tending to prove a fact material to the issue, and a “point of law” is a question of law applicable to the facts as they may be found by the court, which the party may propose in the shape of a written point and require an answer: Lower Augusta v. Selinsgrove, 64 Pa. 166. It results from this construction of the statute, as well as from the provision assimilating the proceedings to those in use in civil cases, that the exceptions must be specific; a single general exception to the opinion or decree of the court is not sufficient to authorize us to review the whole case upon the merits, or to review particular rulings upon points of evidence or of law, even though they be assigned for error. Therefore, the exceptions filed on April 3, 1907, may be dismissed from consideration without further notice. Again, it is not sufficient to merely file exceptions. They must be noted by the court. This is absolutely essential to entitle them to go upon the record. It must appear in some form that they were presented to the court and were put upon the record with the express sanction of the court. As the decisions of the court upon the several written points of law submitted by the parties are not usually made upon the hearing and argument, it is apparent that the legislature did not intend to make it an imperative requirement that the exceptions be noted at that time. Nor do we think they may not be noted after the date on which the decisions were rendered. It is due to the court, however, that they be presented to it within such reasonable time thereafter, “ as that the matter may be still fresh in the recollection of the court,” and we have no doubt that it is within the power of the quarter sessions to declare by a general rule what is the reasonable time within which they must be presented. See Haines v. Commonwealth, 99 Pa. 410. But be that as it may, having regard to the reason of the requirement that the exceptions be noted by the court, as well as to the very words of the act, we think it clear that this must be done before the writ of error (now appeal) allowed by the act may be sued out. And this seems to have been the construction given to the act in Overseers of Parker Township v. Overseers of East Franklin Township, 13 W. N. C. 141, wherein the court said: “Such writs are authorized only where there is any exception to any decision of the court upon any point of evidence or law.” The practice is in some respects analogous to that on an appeal from the refusal to give judgment for want of a sufficient affidavit of defense, in which it has been held to be an essential prerequisite to the right to have the court’s decision reviewed that the plaintiff’s exception be of record, by the allowance of the court, before suing out the appeal: Mehring v. Commonwealth B. & L. Assn., 17 W. N. C. 422; Chambers v. McLean, 23 Pa. Superior Ct. 551.

Viewing the record in the light of the foregoing'conclusions, we are constrained to hold that if there were nothing to show that the exceptions were tendered to and allowed by the court before October 8th and 16th, the motion to quash ought to prevail. There remains to consider the effect of the court’s action on April 15th, as shown by the paper filed on April 19th. In Overseers of East Franklin Township v. Overseers of Rayburn Township, 23 Pa. Superior Ct. 522, it was held that a mere general exception to the judge’s' findings of fact and conclusions of law was insufficient to bring those findings on the record for purposes of review. But in this case there was a specific exception to each finding and conclusion complained of, and by the unequivocal terms of the order referring to them the court noted each of the exceptions. It is true, the court did not actually repeat after each exception the words “Exception noted and bill sealed,” and attach thereto his signature and seal, but the note made at the end was evidently intended to have the same effect as if the judge had gone through that formality. Having regard to substance, every purpose of the statutory provision is carried out by treating this as a bill of the exceptions presented by the appellant and noted and sealed by the court, as it was evidently intended to be. See Commonwealth ex rel. v. Arnold, 161 Pa. 320. We cannot agree that the entry purporting to be made on April 15th is contradicted by the entries purporting to be made on October 8th and 16th. The paper was sent up by the court in obedience to the writ as part of the record, and as the date of filing indorsed on the paper corresponds with the date of filing mentioned in the docket entries, there is no room for doubt that the paper with the final entry made by the court at the end is the paper referred to in the docket entries. Assuming, as we must, that the entries were made by the court at the dates they purport to have been made, the presumption is that the later entries were not intended to qualify or negative what the earlier entry imports, but were intended to be in addition thereto. We therefore conclude, that as the bill of the exceptions presented to and allowed by the court on April 15th and filed on April 19th was sufficient to bring the rulings complained of on the record for purposes of review, the motion to quash must be overruled.

The appellee's counsel concede that if the motion to quash be not sustained the third assignment of error is well taken. As they well say, they could not contend otherwise under the authorities: Overseers of Gilpin Township v. Overseers of Parks Township, 118 Pa. 84; Commonwealth v. Darr, 11 Pa. Superior Ct. 74.

The third assignment of error is sustained, the order of the quarter sessions from which this appeal is taken is reversed, and the order of removal is quashed at the costs of the appellee.