Fries v. Pennsylvania Railroad Co.

• Decision Date: 03 October 1881
• Citation: 98 Pa. 142
• Parties: Fries <I>versus</I> Pennsylvania Railroad Company.
• Court: Pennsylvania Supreme Court

98 Pa. 142

Fries versus Pennsylvania Railroad Company.

Supreme Court of Pennsylvania.

May 24, 1881.

October 3, 1881.

May 24th 1881.

Before MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT, and GREEN, JJ. SHARSWOOD, C. J., absent

ERROR to the Court of Common Pleas of Blair county: Of May Term 1881, No. 141 S. S. Blair (Alexander & Herr with him), for the plaintiff in error.—The effect of the judgment in the Supreme Court of "judgment reversed" without the award of a new venire is only to ease the defendant from the result of an erroneous judgment in the court below, and leaves the parties in statu quo ante bellum. The judgment of reversal cannot be pleaded as an estoppel in a new suit for the same cause of action. The judgment quod judicium reversetur is only conclusive of the fact that the court below committed an error: 3 Bac. Ab. 387, tit. Error; Smith v. Sharp, 5 Watts 292; Coleman's Appeal, 12 P. F. Smith 252; Aurora v. West, 7 Wall. 82. If the court below had granted a nonsuit, the plaintiff could have brought a new action. What is the difference, where the court below submitted the case to the jury, and a verdict and judgment was had for the plaintiff, but the judgment was reversed by the Supreme Court without a new venire? In England, it was always the practice under the statute 21 James I., to bring a new action in such cases; and our Act of March 27th 1713, § 2, Purd. Dig. 932, pl. 20, which is copied from that of 21 James I., expressly authorized a plaintiff in such case to commence a new suit within a year after the judgment of reversal. In order to expedite business, the Supreme Court adopted the practice of allowing a new venire, but it is always a matter of discretion. Sterrett v. Bull, 1 Binney 238, is the first precedent in this state for allowing a venire facias de novo: Mercer v. Watson, 1 Watts 330, 333-34.

It may be that for some purposes, a judgment of reversal is a final judgment, e. g., to support a writ of error to the Supreme Court of the United States, or in replevin to fix the liability on the bond, as in Gibbs v. Bartlett, 2 W. & S. 29. But as res judicata between the parties in a suit of this character, it is no judgment at all.

L. W. Hall and D. J. Neff, for the defendant in error.— The Act of 1713 is a statute of limitation, and its only effect is to declare that in cases where the plaintiff has a good right to sue, he must bring his suit within one year. The act refers only to cases where there was no trial on the merits, and the authorities cited were cases where the merits were not decided. But this case was fully tried and reviewed on the merits, and this court decided that the plaintiff had no cause of action, because the damage was caused by the act of GOD (6 Norris 234). And because the plaintiff had no cause of action, this court overruled his motion for a venire de novo, and that judgment was final: Mayer v. Walter, 14 P. F. Smith 283; Bellas v. Hays 5 S. & R. 445; Griffith v. Eshelman, 4 Watts 51; 1 Tr. & H. Prac. 72 (Ed. 1880); Freeman on Judgments, § 247.

Mr. Justice MERCUR delivered the opinion of the court October 3d 1881.

This contention arises on what effect is to be given to a former judgment between the same parties and for the same cause of action? In the former case a general verdict was found in favor of the plaintiff, and judgment was entered thereon. On error by the defendant to this court, that judgment was reserved, but a venire facias de novo was refused. This suit was brought in less than one year thereafter, for the same cause of action. The question is, whether the former judgment is a bar to this last action? The court below held it was, and on demurrer to a plea thereof, entered judgment in favor of the defendant.

In 3 Bac. Abr. 386 it is said, "If judgment be given against the defendant, and he bring a writ of error upon which the judgment is reversed, the judgment shall only be quod judicium reversetur; for the writ of error is brought only to be eased and discharged from that judgment."

The power of this court to award a venire in the case of a reversal of the judgment is now settled. It was so held in Sterrett v. Bull, 1 Binn. 238, and we are not aware that the power has since been questioned. The exercise thereof is controlled by by the character of the case, and the sound discretion of the court.

A judgment of reversal without a venire is not such a final judgment that an execution can issue thereon for the collection of costs: Smith v. Sharp, 5 Watts 292. The effect of such a judgment was considered in Mercer v. Watson, 1 Watts 330. It was a judgment by this court, in case of a general...