Scanlon v. Suter

27 A. 963, 158 Pa. 275, 1893 Pa. LEXIS 1577

Opinion

Per Curiam,

Neither of the specifications complains of anything that is assignable as error. The first and second allege error in entering the judgment of nonsuit, and in the opinion of the learned judge giving his reasons therefor; and the third charges error “ in granting judgment of nonsuit as to Eli Suter and the Suter Ferry Company, and in proceeding with trial as to Arlington Fields.” No error is assigned to the refusal of the court to set aside the judgment of nonsuit; nor does it appear that any exception was taken thereto.

Error does not lie either to entry or refusal to enter a judgment of nonsuit, but only to the refusal of the court to set aside such judgment: Act of March 11, 1875, Purd. 1863, P. L. 6; Borough of Easton v. Neff, 102 Pa. 474, and cases there cited. There is no provision for removal of the record into this court for revision, except in cases where a nonsuit has been entered and the motion to set aside the judgment has been denied, and exception has been taken thereto. Such refusal to set aside a judgment of nonsuit is in the nature of a demurrer to evidence, and hence it is necessary to bring the testimony on the record by a bill of exceptions.

It follows from what has been said that there is no assignable error on the record; nor is the testimony properly before us. But, if the testimony were here on exception to the refusal of the court to set aside the judgment of nonsuit, and error assigned thereto, there is nothing in it that would justify a reversal of the judgment. So far as it tends to prove anything, the testimony shows that deceased came to his death as the result of a quarrel with Arlington Fields, the ferryman, and it was either an accident or the result of unlawful violence on the part of Fields, outside of the line of his duty, committed without the authority or consent of either of the appellants, and for which they are not responsible.

Judgment affirmed.