Kalin v. Wehrle , 36 Pa. Super. 305 ( 1908 )

Opinion by

Beaver, J.,

■ The appeal here is from a judgment entered upon a verdict rendered by a jury against the defendant in an action of assumpsit to recover money alleged to have been stolen by the appellant, from the appellee more than twelve years before the date of suit. '

There are five alleged assignments of error, none of which can be sustained. The first is thus stated: “The court erred in permitting appellee to testify to matters, contained, in a memo^ randum which was not made by the appellee, or at her direction.” This assignment is in violation of Rule XVI: “When the error assigned is to the admission or rejection,of evidence, the specification must quote the questions or offers, .the ruling of the court thereon, and the testimony, or evidence admitted, if any, together with a reference to the page of the paper-book where-the matter may be found in its regular order in the printed evidence or notes of trial.’.’ .Not one of the requirements of this rule has been complied with and, upon an examination of the printed testimony, we find that no exception to the ruling of the court was taken. This assignment, therefore,- is disregarded.

The second assignment relates to remarks alleged,to have been made by the counsel for the plaintiff, in his address to the jury. These remarks have not been brought ,upon the record in any way, nor does it appear .that the attention of the court was called to them, or that any'ruling was made in relation thereto. None . of the requirements of Holden, v. Penna,. Railroad Co., 169 Pa. 1, and 'subsequent cases, were, complied with. There is nothing,, therefore, before us for consideration.,

In the third assignment, it is alleged that one of the plaintiff’s witnesses was in attendance upon the court as a juryman in the same panel from which the jury trying the case was selected. A motion was made by the defendant to continue the case for that reason, alleging “that, on account of the same, there may be some question as to the fairness of the trial.” The motion was refused. There does not seem to have been any exception to the action of the court in refusing the motion, and, if there had been, this was a question which was entirely within the discretion of the court.

The fourth and fifth assignments of error relate to alleged omissions of the court “in failing to call the jury’s attention to the many inconsistent and contradictory statements of the appellee concerning her knowledge of the time at which the money was taken,” and, “in permitting a recovery on a sum in excess of $200 and interest, as appellee testified this was the only money she had of her own, and the rest of the money was partnership funds.” .If the appellant desired specific directions as to any particular phase of the case, he should have embodied his desire in a request for such instructions. There were no points for charge presented. In the absence of request for specific instructions, we think the whole case was fairly covered by the charge of the court.

Although the question of the application of the statute of limitations is not raised by the assignments of error, it is argued by the appellant and could have been raised by his exceptions to the charge of the court. If the case is subject to the provisions of the Act of March 27,1713, sec. 1,1 Sm. L. 76, the charge of the court fully covers the case. If any fraud had been practiced upon the plaintiffs, so as to mislead her as to her rights in the premises, the statute would not apply, at least until the time of the discovery of such fraud: Claghorn’s Estate, 181 Pa. 608; Smith v. Blachley, 198 Pa. 173.

The appellant’s writ might well have been quashed, in view of the irregularity of the assignments of error and the absence of exceptions to the rulings of the court below, but, in the absence of a motion to quash and in view of all the facts of the case, we prefer to rest our judgment upon an unqualified affirmance.

Judgment affirmed.