Passarelli v. Morello
| Decision Date | 14 October 1912 |
| Docket Number | 186-1912 |
| Citation | 52 Pa.Super. 12 |
| Parties | Passarelli, Appellant, v. Morello |
| Court | Pennsylvania Superior Court |
Argued May 15, 1912
Appeal by plaintiff, from judgment of C. P., Butler Co.-1912, No 125, for defendant n. o. v. in case of L. Passarelli v. Tony Morello.
Appeal from judgment of the peace. Before Galbreath, P. J.
The facts are stated in the opinion of the Superior Court.
Error assigned was in entering judgment for defendant n. o. v.
W. H Martin, for appellant, cited: Haws v. Tiernan, 35 Pa. 192; Blair v. McLean, 25 Pa. 77; Gibson v Gibson, 20 Pa. 9; Fisher v. Longnecker, 8 Pa 410; Carmony v. Hoober, 5 Pa. 305; Weigley v. Coffman, 144 Pa. 489; Robb v. Coal Co., 216 Pa. 418; Buchanan v. Banks, 203 Pa. 599; Levison v. Blumenthal, 25 Pa.Super. 55.
W. D. Brandon, of Brandon & Brandon, for appellee, cited: Gould v. Crawford, 2 Pa. 89; Lawver v. Walls, 17 Pa. 75; Kase v. Best, 15 Pa. 101; Roney v. Westlake, 216 Pa. 374.
Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.
This case came into the common pleas by appeal from the judgment of a magistrate. From the pleadings we learn that the plaintiff sued to recover the sum of about $ 50.00 alleged to be due for bread furnished to the defendant. The latter defended, first, on the ground that he had paid all he owed. The verdict of the jury, however, determined that contention against him. The second ground of defense advanced was that the plaintiff had, before the beginning of the present action, sued on the same claim before another justice; that the latter had rendered a final judgment adverse to the plaintiff which had never been appealed from, and which was therefore a bar to a recovery in the present action. Following the verdict the defendant filed motions for a new trial and for judgment n. o. v. The latter motion was granted and judgment entered for the defendant. This action of the court below, in the opinion of the learned trial judge, rendered " unnecessary any consideration of the reasons assigned in support of the motion for a new trial." The plaintiff then took this appeal.
The facts out of which the legal question arose were briefly these: The plaintiff began an action before Justice McNally to recover his claim and obtained a judgment. On certiorari the common pleas reversed this judgment for some defect in the record which does not here appear. The plaintiff then began another action on the same claim before the same magistrate. The summons was duly served. On the return day the transcript, certified as part of this record, shows the following transpired:
From what is disclosed by the transcript quoted, the learned court below reached the conclusion that such a final judgment had been rendered by the magistrate that the plaintiff was confined to his remedy by certiorari or appeal, and, as a consequence, his later action was thereby barred. This conclusion was predicated chiefly, if not entirely, on the idea that the case in hand was ruled by Gould v. Crawford, 2 Pa. 89.
The general principle on which a former judgment between the same parties, on the same cause of action, has always been held to be conclusive until reversed or set aside, is too plain to need elaboration here. But it is equally clear that where it appears that the former judgment, pleaded as a bar, had not followed any hearing of the parties or their proofs but went off on some collateral issue not in any way affecting the merits of the controversy, such plea could not be sustained and such judgment would not be a bar to another action. Looking first at the language of the transcript quoted, we cannot gather from it that the plaintiff in that proceeding had any hearing. The transcript furnishes no intrinsic evidence that the conclusion reached by the magistrate followed a hearing of the plaintiff's cause of action. On the contrary, it seems to us to furnish undeniable evidence that the magistrate, without hearing the proofs or allegations of either party, for a reason evolved by himself, founded on no fact that appeared in evidence, determined that the plaintiff had no right even to be heard, and therefore declined to hear him.
Do the cases relied on by the learned court below warrant the conclusion that such a judgment was in substance and effect anything more than a judgment of nonsuit which, when entered without a hearing, would not bar a subsequent action? When we come to examine the case of Gould v. Crawford, we are left in no doubt as to the controlling question involved and as to what was decided, for Mr. Justice Rogers says in his opinion: The authoritative force of the decision in that case is therefore manifestly to be confined to a judgment, which, whether in form a judgment of nonsuit or not, was in reality a final judgment " after hearing the parties, their proofs and allegations."
In Lawver v. Walls, 17 Pa. 75, following Gould v Crawford, 2 Pa. 89, it was shown by the docket of the magistrate that the parties had appeared and that the plaintiffs were...
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