25 Pa. 77 | Pa. | 1855
The opinion of the Court was delivered by
When the parties, in a suit pending before a justice, appear, and submit their proofs and allegations, the justice cannot order the plaintiff to become nonsuit. If he attempts to do so, and enters his judgment in that form upon the record, it will be consi
But there is no case which decides that the plaintiff may not become nonsuited on his own motion, or that he may not, if he pleases, discontinue or withdraw his action. We held, in Gibson v. Gibson, 8 Harris 9, that a record' which showed that the plaintiff withdrew his suit, and- confessed judgment for costs, was no bar to another suit for the same cause.
In the case before us, the suit was brought to recover a small balance due on a note. The only defence in the Court below was, that the plaintiff had previously brought suit before another justice for the same money, and that proceeding was set up as a bar. It seems that in the first suit the parties appeared, and after some progress was made in the hearing, the plaintiff being surprised by some evidence which the defendant produced, asked for a continuance, and failing in that, withdrew the suit, and confessed judgment. This 'is exactly like the- case of Gibson v. Gibson, except that there the withdrawal was before the day of trial, and here it was after the trial had began. This makes no material difference. The plaintiff has a right to withdraw or discontinue his suit at any time before the justice pronounces upon it. The cases which decide that the justice cannot give judgment -of nonsuit against him after he appears, have no application.
The judgment of the Court of Common Pleas is reversed, and judgment is now here given in favour of the plaintiff for the amount of the judgment which he recovered before Justice' Tucker, with interest thereon. Amount to be liquidated by prothonotary of Common Pleas.