Flemming v. Pennsylvania Ins. Co.

• Decision Date: 29 January 1846
• Citation: 4 Pa. 475
• Parties: FLEMMING <I>v.</I> The PENNSYLVANIA Insurance Company.
• Court: Pennsylvania Supreme Court

4 Pa. 475

FLEMMING v. The PENNSYLVANIA Insurance Company.

Supreme Court of Pennsylvania.

January 20, 1846.

January 29, 1846.

Jan. 20.

J. M. Scott, for the rule.—The first case in this court was put by the learned judge, who tried the cause, upon a point which went to the merits, and the court in banc sustained that decision, and refused a new trial upon that ground, and also upon another more

technical in its character, and gave judgment in favour of the defendant. That judgment was specially pleaded as a bar to the suit in the District Court, but there was no necessity to resort to that plea at the trial, as the plaintiff failed to sustain his case by his evidence. The rule which prescribes the payment of costs in a former suit, will be found in Tidd's Practice, p. 538; and the cases there cited. An instance of its application in Newton v. Bewley, 1 P. A. Browne's Rep. 38.

C. Ingersoll, contrà.—The rule is never granted unless the former trial was on the merits. Bass v. Firmen, Ld. Raym. 697. This court can only look to the case in this court, as there is no evidence whatever of any trial in the District Court. As to the costs in the District Court they are trifling, as the commissions which had been executed in this court were used in evidence there by the plaintiff.

The defendant has not taxed his costs, nor filed a bill.

Reply. — Bills of costs have been filed. The first case was decided as well upon the merits as upon a technical point, as is apparent by the judge's charge to the jury, given in 4 Whart. 68.

To prove the fact of the case in the District Court, counsel produced a certified copy of the docket entries in that case, and said if they were not sufficient he would ask a rule to take depositions.

The case was decided without any further evidence on this point.

Jan. 29. COULTER, J.

The practice of the courts to stay proceedings in a second suit until the costs of a former action for the same cause are paid, is one of the modes adopted to compel the payment of costs due, as well to the officers of the court as to the party; and is convenient and just in all aspects in which it can be viewed.

The Court of King's Bench has been more liberal in the application of the rule than the Court of Common Pleas in England. But in both it is adopted, where the merits of the case have been decided in the first action. Costs are given to defendants in England by various statutes, the provisions of which, in that respect, are in force here, not only in cases where there has been a verdict and judgment in his favour, but also where the plaintiff has been nonsuited, and also in cases of discontinuance, non pros., and judgment on demurrer; and there would seem to be...