Mutual Loan & Savings Ass'n v. National Surety Co.

98 A. 600, 253 Pa. 351, 1916 Pa. LEXIS 839

• Court: Supreme Court of Pennsylvania
• Decided: April 17, 1916
• Docket: Appeal, No. 358
• Status: Published

Opinion

Per Curiam,

When this case was called for argument a motion was made to quash the appeal, one of the reasons for the motion being that the “charge and answer to points were not certified to by the official stenographer, who took the notes of the same upon trial, in the manner and form required by Section 4 of the Act of Assembly approved the 1st day of May, A. D. 1907, P. L. 135.” This is true, but the requirements of the act of assembly were not complied with because the official stenographer of the court below died shortly after the trial, without having transcribed his notes. Though this is admitted by counsel for the appellee, they insist upon their motion to quash, instead of acting upon the suggestion to allow the case to be heard on its merits, notwithstanding the condition of the record. Under the circumstances, we feel that the only course to pursue to prevent possible injustice to the appellee, which is not blamable for the condition of the record, is to remand the case for another trial, that on appeal from any judgment that may be entered we may have a proper record. The judgment is, therefore, vacated and a veniré facias de novo awarded.