Stoever v. Walmer

Per Curiam: Assuming that the court below erred, under the authority of Gordon v. McCarty, 3 Wh. 407, in holding that the release could not be attacked because James Stoever was not a party to the action, the fact remains that the plaintiff made no attempt to impeach it. His obvious course was to call a witness for that purpose, and if his evidence was objected to and excluded, to take an exception to the ruling of the court. This was not done. The plaintiff appears to have rested upon the opinion of the court that the release could not be attacked, yet took no exception thereto. Nor does an exception appear to [594] have been taken to anything; not even to the order of the court directing a verdict for the defendant. The learned judge was evidently convinced that in the hurry of trial he had committed an error, for, on the same day the verdict was rendered, a motion for a new trial was directed to be entered by the court. Several months afterward a motion was made by defendant’s counsel for judgment upon the verdict, and one of the reasons was that the plaintiff had filed no reasons for a new trial. This motion was denied September 29, 1887. On. December 7, 1888, a new trial was refused, and judgment entered upon the verdict. It would thus appear from the record that the plaintiff had every opportunity to obtain a new trial. Instead of availing himself of it, he brings the case here without an exception to any ruling of the court. As the case stood in the court below the defendant was entitled to a verdict. The release was prima facie a good defence. Aside from this, there was no direct evidence that Shutt and Walmer had no insurable interest in the life of Henry Stoever. There was evidence that neither of them was a relative, but none that they were not creditors.* Judgment affirmed. Footnotes [*] See Lenig v. Eisenhart, 127 Pa. 59.