Kuhns v. Bowman

• Decision Date: 05 January 1880
• Citation: 91 Pa. 504
• Parties: Kuhns et al. <I>versus</I> Bowman.
• Court: Pennsylvania Supreme Court

91 Pa. 504

Kuhns et al. versus Bowman.

Supreme Court of Pennsylvania.

October 31, 1879.

January 5, 1880.

October 31st 1879.

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

Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1879, No. 187 H. P. Laird, for plaintiff in error.—The recovery by John Kuhns in the action of ejectment to May Term 1869, which was pending until the 20th of January 1877, when judgment was entered on the verdict rendered on November 29th 1876, was conclusive that he could commit no trespass in 1876 on this land, for which damages could be recovered in an action of trespass quare clausum fregerunt, brought on October 14th 1876. The judgment was conclusive of Kuhns's right to possession and to mesne profits: Drexel v. Man, 2 Barr 271; Barnes v. Dean, 5 Watts 543; Shoenberger v. Barker, 10 Harris 404; Lane v. Harrold, 22 P. F. Smith 267.

H. D. Foster, H. C. & J. A. Marchand, for defendant in error.—Kuhns, although he had an action of ejectment pending at the time the trespass was committed, had no right to enter upon the possession of Bowman and commit a trespass. He had a right after his recovery in the ejectment to issue a habere facias possessionem, and until that was done he had no right to enter on the land and commit a trespass against Bowman's actual possession.

Mr. Justice MERCUR delivered the opinion of the court, January 5th 1880.

This was an action of trespass, quare clausum fregerunt. The case presents a single question. The facts necessary for an understanding of the case are these: In March 1869, John Kuhns, the plaintiff in error, brought an action of ejectment against the defendant in error for the land on which this alleged trespass was committed. In November 1876, he recovered a verdict for the land, and judgment thereon was duly entered. During the pendency of that action, in October 1876, the defendant in error brought this action of trespass against Kuhns and his sons, who were acting under him, for alleged trespass committed in September previous on the same land. In March 1877, the defendant in error also brought an action of ejectment against said Kuhns for the same land. Both cases were tried together before the same jury. The learned judge charged the jury substantially, that if they found in favor of the plaintiff below, in the action of ejectment, to also find a verdict in his favor for nominal damages in the action of trespass, and added, "In other words, both stand or fall together, as far as any contested question in the causes you are sworn to try is concerned."...