Waln v. Beaver

Per Curiam,

These motions rest on the absence of the official certificate of the stenographer to the copy of his notes filed and sent up with the record, and to the absence of any note or allowance of a general objection to the judge’s charge, also sent up with the record. It is true that the record is duly certified by two of the judges of the court below, in their return to the writ of certiorari, and that the record so certified contains the stenographer’s notes, or what purports to be such.

If counsel for appellee did not object because of the want of the stenographer’s certificate, it is not probable that this court would do so; but counsel for the appellee does object. The object of the trial of causes is to administer justice. Technicalities, inaccuracies, omissions, and rules of practice ought to be- so relieved against, when it is at all practicable, as to enable the courts to dispose of causes on their merits. In order that the questions raised in this case may be so disposed of, we think it our duty to return this record to the court below to afford the judges thereof an opportunity to see that the stenographer makes the proper certificate, and all requests or general objections actually made in regard to the charge be noted, and the fact of their allowance or refusal stated, and if such request or general objection was not allowed, that the reasons for such action may be stated.

Errors assigned were (1 — 10) above instructions, quoting them. <

Joseph de F. Junkin and George Junkin, for appellant, being engaged in another court, submitted their paper-book without argument. S. Morris Waln and John W. Wescott, for appellees,

cited: Bonner v. Herrick, 99 Pa. 225; Cox v. Livingston, 2 W. & S. 103; Gilbert v. Williams, 8 Mass. 57 ; 1 A. & E. Ency. L. 961; Weeks on Attorneys, 479-482; Stephens v. Whithe, 2 Wash. (Va.) 203; McWilliams v. Hopkins, 4 Rawle, 382; Smith v. Shuler, 12 S. & R. 240; Fluck v. Roplogle, 13 Pa. 405; Bagley v. Wallace, 16 S. & R. 245; Knaub v. Esseck, 2 Watts, 282; Martin v. Jackson, 27 Pa. 504; Shoemaker v. Bank, 11 W. N. 284.

It is accordingly ordered that the record, certified into this court by the judges of the Court of Common Pleas of Philadelphia, No. 3, in the above entitled case, be returned to the said court for completion and correction in accordance with the facts, and for the addition thereto of the proper certificate by the stenographer of said court by whom the notes of said trial were taken.

Per Curiam,

May 21, 1894:

After a careful reading of the charge of the learned court below, we are unable to say that we find any error in it. The question at issue was eminently one of fact only and necessarily had to be submitted to the jury. The facts necessary to be established on the part of the plaintiff were clearly explained to the jury and carefully submitted with proper instructions, and the jury found the facts in favor of the plaintiff.

We think the testimony of Mr. Wain that he gave the defendants positive instructions as early as October, 1885, to bring a suit on the overdue bonds, to bring an ejectment on the mortgage in order to get possession of the lands and to obtain a writ of estrepment to stay waste, is fully borne out by the letters passing between the parties during that month. This was long before the sale of the lands for taxes, and its effect upon the matter in controversy was necessarily for the jury. Even if a nonsuit had been asked for, which was not the .case, it could not have been granted. The facts, that Mr. Gephart was present at the very tax sale at which these lands were sold, that previously to that time he had been furnished bj^ the plaintiffs with a full list of the tracts and their warrantee names, and that these identical tracts by the same warrantee names were duly advertised for sale by the treasurer of the county for unpaid taxes, in a number of different newspapers of the county, bore directly upon the very subject of the controversy and could in no circumstances be withheld from the jury. Gentlemen of the bar were examined who testified that when claims secured by mortgage upon unseated lands were sent to them they regarded it as their duty to look for unpaid taxes, and watch the sales, and thereupon to notify their clients of these facts. Nothing of the kind was done in the present case, although the defendants knew of ArdelPs insolvency before the claim was sent to them, and while they had it in charge, and they had constant difficulty in collecting the few small notes that were given by him for one of the bonds. The correspondence shows that the plaintiffs were constantly urging the collection of the notes and bonds, and the obtaining of security for their debt, and this fact also, and the inferences from it, were all for the consideration of the jury. It is not necessary to engage in a full discussion of the testimony; it is sufficient to say that it was for the exclusive determination of the jury and could not be withdrawn from them. Having carefully read the whole of it we are constrained to say that we can find no error in the manner of its submission to the jury. The assignments of error are not sustained.

Judgment affirmed.

1894.] JARECKI v. HAYS et al., Appellants. Syllabus — Master’s Report.