Pennsylvania act of 1905; there being nothing incongruous therein with the organization of the federal courts or their settled rules of procedure.'
"In view of the able argument made in the present case in support of an opposite view, we have re-examined the question but find no reason to differ from our former conclusion. The practice of entering judgments non obstante veredicto has long existed in Pennsylvania, and it enables the case to be concluded by a verdict, while the entry of judgment thereon is made dependent on the court's opinion on a reserved question of law. This permits the judge to give to the decisive law question on which a case turns a more careful examination than he can do in the stress of trial. Moreover, if an appellate court on review of such judgment finds error, it can reverse and direct entry of judgment for the other party and avoid a retrial. Long experience in this practice has convinced the bar and bench of the state of its value in conducing to a more careful and deliberate consideration of the law by the trial judge and to the avoidance of retrials. * * *
"In the present case, the defendants, in accordance with the act, moved the court for binding instructions in their favor. This request was reserved by the court in terms:
"'I reserve the first point of defendants asking for binding instructions in connection with the question whether there is any evidence to go to the jury in support of the plaintiff's claim.'
"Subsequently, on defendants' motion for judgment non obstante veredicto, the evidence was certified, and thereupon ( Columbia & P.S. Railroad Co. v. Hawthorne, 144 U.S. 202, 12 S. Ct. 591, 36 L. Ed. 405; German Ins. Co. v. Frederick, 58 F.  148, 7 C.C.A. 122; Village of Alexandria v. Stabler, 50 F. 689, 1 C.C.A. 616), it became the duty of the court to decide whether there was evidence to go to the jury. On this point the court below thought there was and entered judgment for the plaintiff on the verdict. In this, as we have shown in the foregoing part of this opinion, there was error. The case turned on the construction of the papers, and under our construction they disclosed no right of action in the plaintiffs. We, accordingly, reverse the action of the lower court and remand the case, with directions to enter judgment on the reserved point in favor of the defendants. That this practice results in but one trial and a final judgment on review is sound ground for the federal courts of this state conforming to the state's statutory practice. That this practice saves retrials and permits a final judgment when the case is reviewed shows its practical administrative worth. Interest rei publicae ut sit finis litium. That the statute is of the kind to which the conformity act applies we are clear. Townsend v. Jemison, 48 U.S.[7 How.] 706, 12 L. Ed. 880; Sawin v. Kenny, 93 U.S. 289, 23 L. Ed. 926; Bond v. Dustin, 112 U.S.  607, 5 S. Ct. 296, 28 L. Ed. 835; Ft. Scott v. Eads Brokerage Co., 117 F. 51, 54 C.C.A. 437."
We need only add that in the Redman Case the District Court for the Southern District of New York conformed, in reserving the defendant's point for binding instructions and taking a verdict subject thereto, to the New York Civil Practice Act (sections 459, 461), which authorizes that procedure in the courts of that state, and that the Supreme Court in that case approved the action of the District Court in taking the verdict subject to the reserved point in conformity with the New York act, as clearly appears from its action in directing that a judgment of dismissal on the merits be entered on the reserved point in lieu of the judgment which the District Court entered for the plaintiff on the verdict.
At this point it should be noted that there is one vital difference between the procedure in the state courts and in the federal courts in Pennsylvania. In the state courts an official stenographer is provided for by statute (17 P.S.Pa. § 1801), whose duty it is to take full stenographic notes of all juducial proceedings and to make therefrom a correct typewritten copy, which when certified by him and approved by the trial judge and filed becomes part of the record. Consequently, upon a motion under the act of 1905 to certify and file the evidence, the court has a transcript of the evidence available which has been prepared by its own officer. In the federal courts, however, there is no official stenographer provided and typewritten transcripts of the testimony, if made at all, must be made by stenographers employed by the parties. Consequently upon a motion being made in a federal court under the act of 1905 to have the evidence certified and filed, it is necessary for the moving party to provide the trial judge with a satisfactory typewritten transcript of the testimony, since it is obviously not possible for the trial judge to prepare such a transcript from his own momory.
Accordingly, holding that under the Conformity Act we must follow the procedure laid down in the act of 1905, we conclude that we were without power to enter judgment in favor of the defendant upon the point for binding instructions reserved in the present case. Since the evidence had not been certified and filed so as to become part of the record, it was not before us for consideration upon the motion for judgment, and the judgment which we entered for the defendant has nothing in the record to support it.
The judgment entered for the defendant upon the point of law reserved will accordingly be vacated, with leave to the defendant, upon furnishing the trial judge with a satisfactory transcript of the testimony, to move the court to have all of the evidence taken at the trial duly certified and filed so as to become part of the record and for judgment for the defendant upon the point of law reserved.
© 1992-2004 VersusLaw Inc.