B. F. Lee Co. v. Sherman

43 Pa. Super. 557, 1910 Pa. Super. LEXIS 93

• Court: Superior Court of Pennsylvania
• Decided: July 20, 1910
• Docket: No. 1; Appeal, No. 7
• Status: Published

Opinion

Opinion by

Morrison, J;,

This case, No. 7, April Term, 1910, and No. 8, samé term and year, were sci. fa. sur mechanics’ liens, and the cases being precisely alike, were tried together in the lower court and argued together here. This opinion will be filed in No. 7, but what is said in it will apply to the other case at No. 8, and in the latter case we will simply file a short order disposing of the specifications of error and of the judgment. In both cases there were verdicts in favor of plaintiff for fixed sums of money and judgments having been entered thereon, the defendants appealed.

The first specification of error is, “The court erred in overruling the plaintiffs motion for a compulsory non-suit upon the trial of said case.” This specification is bad as is shown by a vast number of cases in both of our appellate courts. See Rockwell v. Eldred Borough, 7 Pa. Superior Ct. 95; Reece v. Rodgers, 40 Pa. Superior Ct. 171. In the Eldred Borough case we said: “Neither the entry nor the refusal of a compulsory nonsuit can be assigned for error; a refusal to take it off is the only action respecting it which can be reviewed. This has been decided so often that citation of authorities is unnecessary.”

The second specification of error offends against our rule XV, which reads: “Where error is to the charge of the court, or to answers to points or to findings of fact or law, the part of the charge or the points and answers or findings referred to must be quoted totidem verbis in the assignment.” This specification does not quote the point nor the answer, but merely gives the counsel’s conclusion as to what was done by the court. See Ewing v. Cottman, 9 Pa. Superior Ct. 444; and Crawford & Moyes v. McKinney, 165 Pa. 605. “An assignment of error will not be considered which does hot quote the judge’s answer to a point totidem verbis, although it contains the point:” Hall v. Phillips, 164 Pa. 494.

The third specification cannot be sustained for the reason that it, in our opinion, complains of a correct statement of the law. In support of this we need only refer to the last sentence of sec. 3 of the mechanic’s lien Law of June 4, 1901, P. L. 431 (see p. 433): “Materials placed on or near the curtilage appurtenant to the structure or other improvement, or delivered to the owner or contractor for use therein, shall be presumed to have been used therein.” We think the record contains sufficient evidence to warrant the trial judge in submitting to the jury the question of whether or not the materials for which the liens were filed were delivered to the defendants as averred by the plaintiff. And that question was fairly and adequately left to the jury.

The fourth' and last specification is, “The court erred in refusing the defendants’ motion for judgment for the defendants non obstante veredicto.” This specification is bad as the motion ought to have been printed in full, and what the court said in disposing of it should also have been quoted and printed with the motion. This, is not done and we are not even referred to where the motion and the order of the court thereon can be found. But there is another reason why we cannot consider this assignment. In International Savings & Trust Co. v. Printz, 37 Pa. Superior Ct. 134, we held that under the Act of April 22, 1905, P. L. 286, the parties asking for a judgment non obstante veredicto and failing to secure it, must ask for and obtain an exception, otherwise an appeal from the action of the court will be quashed; that the court is not required to grant an exception and place it in the record unless it is asked for by the losing' party. This undoubtedly means that the losing party should ask for the exception at the time the decree is filed or with reasonable promptness thereafter. See McGinnis v. St. Paul Fire, etc., Ins. Co., 38 Pa. Superior Ct. 390.

Having concluded to overrule all of the specifications of error, we are not called upon to consider several matters discussed in the appellant’s argument but which are not properly raised for our consideration.

The specifications of error are all overruled and the judgment is affirmed.