The opinion of the court was delivered, July 2d 1873, by
Sharswood, J. —This judgment must be reversed. To a declaration in assumpsit, the defendant pleaded the general issue. A jury was called, and on the 20th April 1872, a verdict was rendered in favor of the plaintiffs, for $1069.80. On the same day appears a rule to show cause why judgment should not be entered for the defendant non obstante veredicto, and on the 16th of July 1872, the opinion of the court was filed, and judgment entered for the defendant, notwithstanding the verdict. Upon what this judgment is grounded — where the only issue was one of fact, and had been found for the plaintiff — does not appear, except from the opinion of the learned president filed, that the evidence given, did not in law', warrant the verdict. This would have been a very sufficient reason for setting it aside and granting a new trial. If the same evidence was given on the second trial, and his opinion remained unchanged, he could have directed the jury to find for the defendant. Upon an exception by the plaintiffs, we could then, on a writ of error, have considered whether his charge was correct in point of law. But we have it not now before us. The plaintiffs, who have taken this writ of error, insist that the charge below was *52right in submitting the question to the jury, and have assigned no error except to the opinion of the court upon the rule and the judgment non obstante veredicto.
It has been attempted to support the judgment upon the notion that it may be regarded. as entered upon a reserved point. But the record shows no reservation. Properly, wherever there is a point or points reserved at the trial, the verdict should be taken subject to the opinion of the court, upon the reserved points. The record then shows the ground upon which the final judgment non obstante veredicto is based. But a loose practice has prevailed, and been sanctioned by this court, according to which it is considered sufficient that the reserved point or points should appear on the bill of exceptions, bringing, thereby, the facts on the record. We have here five bills of exceptions — three by the plaintiffs and two by the defendant — to the admission and rejection of evidence, but as there does not appear any reservation, of course there is no exception on that head, nor was there any exception to the final judgment, as is necessary, wherever there is a judgment entered upon a reserved point or points. No such exception was requisite here, for the judgment is without warrant and erroneous on its face. It is not necessary that we should consider the plaintiffs’ bills of exceptions, for they have not been assigned for error.
We might enter judgment on the verdict for the plaintiffs. But that would not be just to the defendant. It does not appear that the rule for judgment was taken at his instance. It is true, he ought to have made his motion for a new trial within the time prescribed by the rule. But it looks very much as if he had been precluded from this course by the action of the court. We remand the case for further proceedings, in order that the defendant may apply for leave to enter a motion for a rule for a new trial nunc pro tunc.
Judgment reversed and procedendo awarded.