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GELZHISER v. FISHER (04/20/65)

SUPREME COURT OF PENNSYLVANIA


decided: April 20, 1965.

GELZHISER, APPELLANT,
v.
FISHER

Appeal from decree of Court of Common Pleas of Westmoreland County, Jan. T., 1957, No. 461, in case of Oliver Gelzhiser v. J. Homer Fisher, Bernard L. Stoecklein and George F. Stoecklein, trading and doing business as Penn Lincoln Memorial Park.

COUNSEL

George E. Berry, Jr., with him James L. McWherter, for appellant.

Henry R. Shaw, with him Charles E. Marker, and Scales and Shaw, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell.

Author: Bell

[ 418 Pa. Page 88]

Plaintiff, Oliver Gelzhiser, filed a complaint in assumpsit against J. Homer Fisher, Bernard L. Stoecklein and George F. Stoecklein d/b/a Penn Lincoln Memorial Park. At the conclusion of the testimony, the lower Court directed verdicts for the defendants. Plaintiff filed a motion for a new trial, which was denied. Judgment was never entered on the verdicts.

[ 418 Pa. Page 89]

Plaintiff appealed to this Court "from the lower Court's Opinion and Decree dismissing the motion for a new trial."

In Denmon v. Rhodes, 416 Pa. 568, 207 A.2d 860, we said: "As stated in the footnote in Menyo v. Sphar, 409 Pa. 223, 224, 186 A.2d 9: 'Too many members of the Bar mistakenly believe that the appeal is from an Order which dismissed their motion for a new trial, instead of from a judgment which was entered on the verdict: Simpson v. Pennsylvania Turnpike Commission, 384 Pa. 335, 121 A.2d 84. Compare also Hazle Township Supervisors' Appeal, 406 Pa. 641, 180 A.2d 232.'"

This appeal must be quashed because it was not taken from a judgment. The record is remanded to the Court of Common Pleas of Westmoreland County without prejudice to the right to enter a judgment on the verdicts.

Appeal quashed and record remanded.

Disposition

Appeal quashed.

19650420

© 1998 VersusLaw Inc.



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