Lipsky v. Stolzer

Citations

• 236 Pa. 151
• 84 A. 688
• 1912 Pa. LEXIS 728

Syllabus

<p>Practice O. P. — Disagreement of jury — Motion for judgment upon the whole record — Judgment — Appeal—Act of April 20,1911, P. L. 70.</p> <p>1. Where a jury has disagreed and the defendant moves that all the evidence shall be certified and filed, and also moves for judgment in favor of the defendant upon the whole record under the Act of April 20, 1911, P. L. 70, and the court acts upon the motion as follows: “Motion dismissed,” such action of the court is not a judgment from which an appeal lies.</p> <p>2. Under the Act of April 20, 1911, P. L. 70, the record should disclose the several steps in the proceeding. It should appear that binding instructions had been reserved or declined, that the jury had disagreed, that the party had moved the court to certify the evidence and enter judgment in his favor, that the court was of the opinion that a new trial should not be granted, and that judgment was entered in favor of the appellee. Unless these facts are found to exist, the statute does not empower the trial court to enter a judgment, nor authorize an appeal from its action in refusing judgment.</p> <p>3. The dismissal of a motion for judgment implies that the court is “of opinion that the ease should be re-tried.”</p>