Carmony v. Hoober

• Decision Date: 07 June 1847
• Citation: 5 Pa. 305
• Parties: CARMONY <I>v.</I> HOOBER.
• Court: Pennsylvania Supreme Court

Page 305

5 Pa. 305

CARMONY v. HOOBER.

Supreme Court of Pennsylvania.

May 27, 1847.

June 7, 1847.

May 27.

IN error from the Common Pleas of Clearfield.

Wallace and J. T. Hall, for plaintiff in error.—The question should have gone to the jury, for it was mixed of law and fact. The declarations were different; the present averring proceedings in the Orphan's Court which were not in existence when the former judgment was recovered. It was, moreover, apparent on the record that the merits of the case had not been gone into. There was an averment generally of a deed having been tendered, but none as to the proceeding in the Orphan's Court. This new averment made indeed a new cause of action, and certainly threw upon the defendants at least to show that the merits of the case had been disposed of there. The evidence also was different. The plaintiff could not have recovered in the former action without proof of tender of a deed, and the evidence in this cause showed that there was no authority then in existence to make the tender, and there being no evidence that the deed was tendered by the intestate, there was sufficient, beside the charge of the court, to go to the jury on the question whether that default was the ground of that judgment. If it was, it was no bar to this action; Wilson v. Hamilton, 9 Serg. & Rawle, 424; Newbold v. Wright, 4 Rawle, 195; Porter v. McIlroy, 4 Serg. & Rawle, 436; 2 Serg. & Rawle, 415; Jones v. Wildes, 8 Serg. & Rawle, 150; Sadler v. Slabaugh, 2 Watts, 73; Rice v. King, 7 Johns. 20; Cam. & Nor. 99; 2 Wm. Black. R. 831; 3 Wils. 308; 1 Mod. 207; 4 Bac. Abr. 114.

Smith, contrà.—The plaintiff's misfortune in not being prepared with his evidence on a former trial has no effect on the verdict and judgment, and if it was for the same cause of action the record is pleadable in bar; Kilheffer v. Herr, 17 Serg. & Rawle, 319, 326. The question is not what was inquired into, but whether the same causes have been twice counted on; Croft v. Steele, 6 Watts, 375; Anspach v. Brown, 7 Watts, 139. There can be no collateral inquiry into the propriety of the former decision; Bower v. Tallman, 5 Watts & Serg. 556; and it is immaterial that it was in an action subsequently brought; Duffy v. Lytle, 5 Watts, 120. The only distinction is between divisible and indivisible causes of action; Sterner v. Gower, 3 Watts & Serg. 143; Hess v. Heeble, 6 Serg. & Rawle, 59.

June 7. BELL, J.

Though the pleadings in this case are very defective in form and substance, and stop short of the issue the parties intended to present as the principal one, the record sufficiently shows that the sole question agitated in the court below was, whether the verdict and judgment rendered against the plaintiff in the action brought by him against the defendant, to November Term, 1840, and pleaded in bar in the present suit, estops the plaintiff for ever of his action for the alleged breach of the covenants which give rise to this litigation. The court below being of opinion that such was its legal effect, declined to hear evidence in support of the defendant's second plea of "covenants performed," instructed the jury that the former judgment was conclusive against the plaintiff's right to recover in this suit, and accordingly directed them to find a verdict for the defendant. This instruction is here assigned for error, and it presents a naked question of law free from any embarrassment which might arise from conflicting facts. The maxim which forbids a second judicial agitation of rem judicatam by the same parties or their privies, is one of essential consequence in its application, and therefore to be rigidly adhered to within the bounds that have been assigned to it. But we think it has never been carried to the verge to which the learned judge before whom the cause was tried has pushed it in the present instance. On the contrary, it has been held an acknowledged principle, that when it can be gathered from the record, the merits of the controversy were not passed upon in the first action, but the determination proceeded upon some technical objection not affecting the plaintiff's ultimate right to sue, the first judgment will constitute no bar to the second suit: for, as was observed by a very eminent jurist, in such case the argument that the causes of action were the same is virtually negatived. (Per Story, J., in Hughes v. Blake, 1 Mason, 519.) This exception to the maxim invoked by the defendant in error, if indeed it can strictly be called an exception, since it assumes the character of a general rule, is almost, if not altogether, co-existent with the rule itself. Thus, in a very early case, it was held that where the judgment was rendered on the ground of the insufficiency of the declaration, the defendant could not use it as a bar to a second action for the same cause, though by mistake or design the judgment was rendered with a nil capiat instead of an eat sine die; Lepping v. Kedgewin, 1 Mod. R. 207; and if an heir brought formedon in the descender, and was barred in it, yet he might have a formedon in the remainder or reverter; for mistaking his action, as was said, is not an estoppel to bringing his true action; Robinson's case, 5 Rep. 32 b. So too where the plaintiff mistakes the character in which he ought to sue, by bringing his action as administrator, and judgment passes against him on that ground, it will not preclude him from a second action for the same cause brought as executor; Kitchen v. Campbell, 3 Wils. 308; S. C. 2 Wm. Black. 831. The rule is the same if the first cause went off because the court had not jurisdiction, or because the debt or duty sued for was not then due; Estill v. Taul, 2 Yerg. 467, 470; or, as was determined by this court in Kane v. Fisher, 2 Watts, 253, where the record shows that part of a demand, consisting of several articles capable of being separated, was not due, though counted for at the time of suit brought. But approaching somewhat nearer to the precise point presented for adjudication by the case at bar, it will be found that when it appears the first suit was prematurely commenced, no advantage can be taken of a judgment rendered therein against the plaintiff, unless indeed it be shown the parties waived the irregularity and consented to an...