Vought v. Sober
| Decision Date | 17 May 1873 |
| Citation | 73 Pa. 49 |
| Parties | Vought <I>versus</I> Sober. |
| Court | Pennsylvania Supreme Court |
Before READ, C. J., AGNEW, WILLIAMS and MERCUR, JJ. SHARSWOOD, J., at Nisi Prius
Error to the Court of Common Pleas of Northumberland county: Of September Term, No 23 L. H. Kase (with whom was S. P. Wolverton), for plaintiff in error, cited Act of March 20th 1810, sect. 6, 1 Br. Purd. 852, pl. 51; Haws v. Tiernan, 3 P. F. Smith 193; Carmony v. Hoober, 5 Barr 307; Fisher v. Longecker, 8 Id. 410.
W. A. Sober, for defendant in error, cited Gould v. Crawford, 2 Barr 89; Lawver v. Walls, 5 Harris 75; Haws v. Tiernan, 3 P. F. Smith 193.
The judgment of nonsuit rendered by the justice in the previous suit, brought on the same note, is no bar to the action in this case. It was not a judgment on the merits, after hearing the proofs and allegations of the parties, but a judgment of nonsuit in default of the plaintiff's appearance on the day to which the hearing of the case had been continued. It is immaterial that the plaintiff appeared by attorney on the return-day of the summons, if he was guilty of such subsequent neglect as authorized the judgment. It was as much his duty to appear on the day to which the hearing of the case was adjourned, as to appear on the return-day of the writ; and for his default in not appearing, no judgment except that of nonsuit could be properly rendered against him. Why then should it be regarded as final and conclusive of the rights of the parties? It was not rendered after hearing their proofs and allegations, as was the judgment of nonsuit in Crawford v. Gould, 2 Barr 89, which was consequently held to be final, regardless of its form; nor was it entered after the appearance of the parties on hearing, as in Lawver v. Walls, 5 Harris 75, because the plaintiff was not able to substantiate his claim. If it had been, then it might be regarded as equivalent to a judgment that the plaintiff had no cause of action. But it was, as the docket entries show, a judgment of nonsuit in default of the plaintiff's appearance; and in his absence no other judgment could be rightfully entered against him. It is conceded that if the judgment had been rendered in default of the plaintiff's appearance on the return-day of the writ, it would not be conclusive of the rights of the parties. Why then should it be when entered in default of his appearance on the...
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Sauber v. Nouskajian
...to Equity Rule 66. Nonsuit is no bar to a second action: Moreland Twp. v. Gordner, 109 Pa. 116; Detrick v. Sharrar, 95 Pa. 521; Vought v. Sober, 73 Pa. 49; Haws Tiernan, 53 Pa. 192; Gardner v. R.R., 150 U.S. 349; Bournonville v. Goodall, 10 Pa. 133. Dismissal of a bill without prejudice is ......
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Birch v. Andrew's Mill Co.
... ... Carmony v. Hoober, 5 Pa. 305; Fleming v ... Insurance Company of Pennsylvania, 12 Pa. 391; Haws ... v. Tiernan, 53 Pa. 192; Vought v. Sober, 73 Pa ... 49; Follansbee v. Walker, 74 Pa. 306; Detrick v ... Sharrar, 95 Pa. 521; Weigley v. Coffman, 144 ... Pa. 489; Blood v. Crew ... ...
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Passarelli v. Morello
...plaintiff or his witnesses to substantiate his claim. Without this there would be nothing to support a judgment in his favor. In Vought v. Sober, 73 Pa. 49, it was held that the plaintiff had appeared on the return day of the summons, but the hearing had been postponed by continuance, and t......
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Gates v. Servicemaster Commercial Service
...judgment of non pros. seems to have been well recognized by the profession as we find a dearth of decisions. In the case of Vought v. Sober, 73 Pa. 49, 51 [ (1873) ], the court held that a judgment of nonsuit rendered by a justice of the peace is no bar to a suit upon the same cause of acti......