Follansbee v. Walker

• Decision Date: 27 October 1873
• Citation: 74 Pa. 306
• Parties: Follansbee <I>versus</I> Walker <I>et al.</I>
• Court: Pennsylvania Supreme Court

74 Pa. 306

Follansbee versus Walker et al.

Supreme Court of Pennsylvania.

October 21, 1873.

October 27, 1873.

October 21st 1873.

Before READ, C. J., AGNEW, SHARSWOOD, WILLIAMS and MERCUR, JJ.

Error to the Court of Common Pleas of Erie county: Of October and November Term 1873 J. Benson (with whom was E. Babbitt), for plaintiff in error.— The judgment of a court to be good, as a plea in bar, must be between the same parties upon the same matter directly in question and upon the merits. If the trial went off on a technical defect, or because of a temporary disability of the plaintiff to sue, or the like, the judgment will be no bar to a future action: 1 Greenleaf Ev., sects. 528, 530; Dale v. Rosevelt, 1 Paige 35; Kauffelt v. Leber, 9 W. & S. 93. Follansbee, who had no right to sue, is not the same party as Walker & Follansbee who had the right: Kelley v. Eichman, 3 Whart. 419; 1 Chit. Plead. 1, 13.

It is not necessary to the validity of a judgment that the name of the assignee of the claim should appear on the record: Reigart v. Ellmaker, 6 S. & R. 44; Paul v. Whitman, 3 W. & S. 407; Montgomery v. Cook, 6 Watts 238; Blanchard v. Commonwealth, Id. 309; Miller v. Manrice, 6 Hill 114.

Whenever a judgment in a former case is relied upon as conclusive in another, it may be shown by parol evidence not inconsistent with the record, that the particular point relied on was not adjudicated, if in law the judgment could have been rendered on any other: Hall v. Breidenbach, 3 S. & R. 204; Coleman's Appeal, 12 P. F. Smith 252. A juror may testify what claims were allowed under the plea of payment: 6 Ohio Rep. 232; Converse v. Colton, 13 Wright 346; Carmoney v. Hoober, 5 Barr 305.

The plea of judgment recovered is mixed matter of record with matter of fact: Lytle v. Lee, 5 Johns. 112; Thomas v. Rumsee, 6 Id. 33.

J. C. Marshall, (with whom was F. F. Marshall), for defendants in error.—Those are parties who have a right to control the proceedings: 1 Greenl. Ev. sect. 535; Calhoun v. Dunning, 4 Dallas 120; Rogers v. Haines, 3 Greenl. R. 362; Coates v. Roberts, 4 Rawle 112; Chambers v. Lapsley, 7 Barr 24; Kinnersley v. Orpe, Douglass 56; Castle v. Noyes, 4 Kernan (N. Y.) 329; Washington Packet Co. v. Sickles, 24 Howard 343; s. c. 5 Wallace 592.

The opinion of the court was delivered, October 27th 1873, by SHARSWOOD, J.

There was no error in the admission of the record of the former judgment. The parties in that suit and in the action tried below were substantially the same. In the former, Joshua Follansbee was the legal, in the latter, he is the equitable plaintiff. The subject-matter of the two suits appeared by the record to be identical. The presumption would be upon the issues, that the merits had been passed upon in the former proceeding. Such being the case, if no technical objection appeared to have been raised upon the record to the right of Joshua Follansbee to maintain the action as legal plaintiff, the judgment in that action would be a bar to a subsequent action by him as equitable plaintiff. If it appeared that only the equitable, not the legal right, was in Joshua Follansbee, it would be presumed that the defendant had waived that purely technical objection. It would be very unreasonable and contrary to the settled rules upon the subject, to permit the plaintiff having once been defeated on the merits, to try the same question over again in a different form: Calhoun's Lessee v. Dunning, 4 Dall. 120; Marsh v. Pier, 4 Rawle 273; Chambers v. Lapsley, 7 Barr 24.

But we are of opinion that the learned judge below fell into an error in excluding the evidence offered by the plaintiffs, the rejection of which forms the subject of the second assignment. That offer was to prove by members of the jury impannelled on the trial at the first suit "that the jury decided only on the preliminary question submitted by the court, whether or not the transaction was with the firm of Walker & Follansbee, or with Follansbee alone, and that they did not pass upon the accounts between the parties submitted to them in a subsequent part of the charge." This was objected to for the reason that the evidence was incompetent and irrelevant. In strictness this was not an objection to the competency of the witnesses, but only to the competency of the evidence. Waiving that point, however, we will consider both questions.

The charge of the judge as filed of record in the first case, showed conclusively that both the questions referred to in the offer were...