FRIESE v. FRIESE ET AL., 336 Pa. 248 (1939)

9 A.2d 404

Friese v. Friese et al., Appellants.

Supreme Court of Pennsylvania.September 29, 1939.
November 27, 1939.

Argued September 29, 1939.

Before SCHAFFER, MAXEY, LINN, STERN and BARNES, JJ.

Appeal, No. 195, March T., 1939, from judgment of C. P. Allegheny Co., July T., 1936, No. 1346, in case of

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Mary W. Friese v. Walter A. Friese et al., administrators d. b. n. Judgment reversed.

Issue from Orphans’ Court of Allegheny County. Before KENNEDY, J.

The facts are stated in the opinion of the Supreme Court, reported in 336 Pa. 241.

Verdict and judgment for plaintiff. Defendants appealed.

Error assigned, among others, was refusal of judgment for defendants n. o. v.

H. F. Stambaugh, with him J. Randall Thomas, for appellants.

Donald Thompson, with him Harbaugh Miller and Stephen Emery, for appellee.

OPINION BY MR. JUSTICE MAXEY, November 27, 1939:

This is an appeal from the judgment of the Court of Common Pleas of Allegheny County, which tried an issue awarded to it by the Orphans’ Court of that county. What we have said in our opinion this day filed in re appeals No. 193 and No. 194, March Term, 1939, of Walter A. Friese and Sarah M. Burkert, in re Estate of Charles A. O. Friese, deceased, from the decree of the Orphans’ Court of Allegheny County, applies equally to the above captioned appeal. The jury which tried the issue awarded to it by the Orphans’ Court found in favor of the plaintiff, i. e., the appellee here, against the defendants, the appellants here, in the sum of $8,992.31. The Court of Common Pleas refused to enter judgment for defendants n. o. v. and sustained the verdict and remitted the record to the Orphans’ Court. It is conceded that the verdict was advisory: Cross’s Est., 278 Pa. 170, 122 A. 267. After the Court of Common Pleas refused to enter judgment n. o. v., the defendants took an appeal

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to this court. For the reasons stated in the opinion above referred to in re appeals No. 193 and No. 194, March Term, 1939, we sustain this appeal and enter the following order:

The judgment is reversed and is here entered for defendants.