Moyer v. Phillips

40 Pa. Super. 1, 1909 Pa. Super. LEXIS 554

• Court: Superior Court of Pennsylvania
• Decided: July 14, 1909
• Docket: Appeal, No. 29
• Status: Published

Opinion

Per Curiam

When on application for a new trial the court below, on a review of the whole case, concludes, in the exercise of its judicial discretion, to let the verdict stand as the judgment of the court, nothing but a manifest abuse of this discretion will justify the appellate court in disturbing the conclusion: Reno v. Shallenberger, 8 Pa. Superior Ct. 436; Halahan v. Cassidy, 12 Pa. Superior Ct. 227. The power of the appellate court to grant a new trial is exceptional in character and only to be exercised in very clear cases of wrong or injustice which the court below should have remedied: Schenkel v. Pittsburg, etc., Trac. Co., 194 Pa. 182, Neff v. Penna. R. R. Co., 202 Pa. 371. It is needless to multiply authorities in support of propositions so well settled. The argument addressed to us by appellant’s counsel has not convinced us that there was such manifest abuse of discretion as would justify us in interfering. But, apart from this consideration, the appeal must be dismissed. The reasons upon which the motion for a new trial was based, if any were filed in the court below, are not printed in the appellant’s paper-book. Nor does it appear in the assignment of error or elsewhere in the paper-book that an exception was taken to the action of the court, Moreover, the paper-book fails to show that what is alleged to have been the evidence adduced at the trial has been certified by the trial judge either in the manner prescribed by rule VI, or by the statute. And, upon examination of the record itself, we find that it was not so certified. It was absolutely essential that this should be done in order to bring into review the action of the court here assigned for error.

The appeal is quashed at the costs of the appellant.