Deacon v. Hendricks

66 Pa. Super. 36, 1917 Pa. Super. LEXIS 186

• Court: Superior Court of Pennsylvania
• Decided: March 13, 1917
• Docket: Appeal, No. 369
• Status: Published

Opinion

Per Curiam,

On the trial in the court below, which was had without a jury, there were no requests for any finding of fact, and the record does not disclose an exception to the ruling of the court, either to the admission or exclusion of evidence. The finding is, the conclusion of the trial judge, based on the testimony presented, and we follow the rule laid down in Herring v. Weinroth, 61 Pa. Superior Ct. 529, and in Peoples v. Philadelphia, 62 Pa. Superior Ct. 553, in which we held, “If the assignments of error are not based on anything brought into the record by bill of exception, the only question legitimately raised by them is whether the judgment was regular and responsive to the issue presented by the pleadings. The general finding was responsive to the issue presented by the pleadings, and as the issue was one of fact depending for its determination on oral testimony, the finding as perfectly supported the judgment entered thereon, as would the general verdict of a jury upon the same issue.......Where an issue of fact depends on oral testimony it is the province of the jury, if the case be tried before a jury, or of the court, if the case be tried by the court without a jury, to decide.”

After a careful consideration we accept the conclusion reached by the trial'judge, and the judgment is affirmed.