Blair v. McLean

Decision Date01 January 1855
Citation25 Pa. 77
PartiesBlair versus McLean.
CourtPennsylvania Supreme Court

Church, for plaintiff in error.—There was no pretence of adjudication by the justice upon the merits in the first suit. He considered it a case of nonsuit under the 6th sect. of the Act of 1810, by allowing 50 cents costs to defendant: Purd. Dig. 484-8, 49. The case was withdrawn after hearing a witness, and this the Court below held a judgment on the merits or a technical retraxit. A like proceeding held substantially to be a non-pros. or discontinuance: Gibson v. Gibson, 8 Harris 9. See 8 Barr 163, 410; 5 Id. 307.

Pettis, for defendant in error, cited Gould v. Crawford, 2 Barr 89. The justice had no power to enter a nonsuit; the remedy of plaintiff was by appeal. After hearing, it was obligatory on the justice to give judgment for or against the plaintiff. See also 5 Harris 75. When the plaintiff fails to appear, judgment of nonsuit may be given, but the moment he appears no such authority exists. Before hearing he may withdraw or discontinue, but after he can do neither; and the justice's record in aid of either cannot help him.

The opinion of the Court was delivered by BLACK, J.

When the parties, in a suit pending before a justice, appear, and submit their proofs and allegations, the justice cannot order the plaintiff to become nonsuit. If he attempts to do so, and enters his judgment in that form upon the record, it will be considered equivalent to a judgment in proper form for the defendant. No other suit can afterwards be brought for the same cause of action. It does not matter whether the magistrate's decision against the plaintiff be founded on want of evidence to support the claim, or on a successful answer to it by the defendant. This was ruled in Gould v. Crawford, 2 Barr 89, and in Lawver v. Walls, 5 Harris 75.

But there is no case which decides that the plaintiff may not become nonsuited on his own motion, or that he may not, if he pleases, discontinue or withdraw his action. We held, in Gibson v. Gibson, 8 Harris 9, that a record which showed that the plaintiff withdrew his suit, and confessed judgment for costs, was no bar to another suit for the same cause.

In the case before us, the suit was brought to recover a small balance due on a note. The only defence in the Court below was, that the plaintiff had previously brought suit before another justice for the same money, and that proceeding was set up as a bar....

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2 cases
  • Passarelli v. Morello
    • United States
    • Pennsylvania Superior Court
    • October 14, 1912
    ...Error assigned was in entering judgment for defendant n. o. v. W. H. Martin, for appellant, cited: Haws v. Tiernan, 35 Pa. 192; Blair v. McLean, 25 Pa. 77; Gibson Gibson, 20 Pa. 9; Fisher v. Longnecker, 8 Pa. 410; Carmony v. Hoober, 5 Pa. 305; Weigley v. Coffman, 144 Pa. 489; Robb v. Coal C......
  • Hutchings v. Royal Bakery & Confectionery Co.
    • United States
    • Oregon Supreme Court
    • October 10, 1911
    ...may not become nonsuited on his own motion, or that he may not, if he pleases, discontinue or withdraw his action"--citing Blair v. McLean, 25 Pa. 77. "Under the earlier English decisions, plaintiff become nonsuit even after verdict, if dissatisfied with the damages awarded by the jury. But......

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