R. Rothschild's Sons' Co. v. McLaughlin

Opinion by Beaver, L, None of the twenty-three assignments of error can be intelligently disposed of, without a consideration of the testimony taken in the trial in the court below; but it is not properly before us. The stenographer’s report of the testimony is not certified by the court nor authenticated in any other way. Not only is it not authenticated but it comes to us in a very unsatisfactory condition. An addition is made at the end of it on different paper, in different colored ink, which is pasted and [615] attached by eyelets to what seems to have been the original transcript of the notes of testimony. In the late case of Yoast v. Beatty, 12 Pa. Superior Ct. 219, the president judge of this court has laid down the rule, based upon numerous authorities therein cited, which must govern in cases like the present, “ that the stenographer’s notes of evidence, exceptions and charge, when filed of record, should be certified by the signature of the judge.” The only certificate of the president judge of the court below, who tried the case, is, “ I certify that the above and foregoing typewritten translation of the stenographer’s report of the charge of the court and answers to plaintiff’s points are substantially correct.” This comes far short of what is necessary, as was pointed out by Mr. Justice Mitchell in the case of Commonwealth v. Arnold, 161 Pa. 320, quoted in Yoast v. Beatty, supra, in which he sums up the whole subject as follows : “ But the distinct assent of the judicial mind to the truth of that part of the record made up by the stenographer must appear of record by the certificate of the judge under his own hand. He may make as many certificates as he pleases, but he must make at least one which discloses his belief that the stenographic notes are verity and that he so declares.” It was stated at the argument of this case, by the appellant’s counsel, that the stenographic notes of testimony were not only not certified by the judge but that he had distinctly refused to certify them for reasons which were not given. Whether the reasons were sufficient or insufficient does not appear, but the fact remains that the testimony is not authenticated in any way and, therefore, cannot be considered by us and, without its consideration, the assignments of error are meaningless. It follows that the appeal must be quashed or the judgment affirmed. There is no motion before us to quash.the appeal and there is nothing left but to affirm the judgment, which is accordingly done. Judgment affirmed.