211 Pa. 74 | Pa. | 1905
Opinion by
The syllabus of the official report of the case of Rosenberg v. Mencke, 208 Pa. 331, is at least partly responsible for the error of the court below in quashing this writ. The last sentence of the syllabus is misleading and a misstatement of what was decided in the case. Two ejectments were brought for the land in controversy in that case. The first action was by Mencke against Rosenberg in which there was a judgment in the trial court for the defendant. On appeal to this court, the judgment was reversed and a new venire awarded: 202 Pa. 131. When the case was again called for trial in the common pleas, the plaintiff suffered a judgment of non pros. Rosenberg then brought an action of ejectment for the same premises against Mencke. The defendant took a rule to quash the writ on the ground that the former action between the same parties was upon an equitable title and hence the judgment in that ease was a bar to another action of ejectment for the same premises between the same parties. The facts were agreed upon by the parties and, for the reason for which the rule was issued, the trial court made it absolute and quashed the writ. No question of the right of the court to determine the merits of the ease on the rule was raised by the plaintiff, When the case came into this court on appeal, it is true, the error formally assigned was the order quashing the writ; but the plaintiff ignored the question of practice, and each party based his right to a decision in his favor, on his view of the question of
The facts of this case may be briefly stated. The plaintiff brought an action of ejectment against the defendants on November 11, 1903, and the writ was duly served and an appearance was entered by counsel. Pursuant to a rule for the purpose issued at the instance of the defendants, the plaintiff, after many unsuccessful attempts, succeeded in filing a satisfactory “ amended declaration and abstract of title. ” The defendants thereupon obtained a rule on the plaintiff to show cause why the writ should not be quashed. This rule was founded on the affidavit of one of the defendants which averred that in a former suit in equity between the same parties, or their predecessors in title, “ the rights and title involved were identical with those involved in the present suit, and every such right and title so involved in said equity suit and in this ejectment suit was finally decided against the plaintiff herein by the Supreme Court.” The plaintiff filed an answer in which she averred that the rule was not founded upon any sufficient grounds, and that the only manner in which the defendants could avail themselves of the decision in the equity suit “ would be by plea of former recovery, or the plea of not guilty in ejectment, under which it would be one of the issues to be tried by the jury and cannot be a ground for quashing the writ.” The learned court below sustained the contention of the defendants for the reasons set forth in the following brief and effective, if not convincing, opinion: “ This case was
It was manifest error to quash the writ of ejectment on the ground set up in the affidavit of the defendants that there had been an adjudication of the rights of the parties in the former equity suit. An original writ can be quashed only where it is irregular, defective or improper. It is not alleged that either of these reasons for quashing the writ obtain in this case. The writ was issued by a court of competent jurisdiction, by the proper officer of the court under his seal of office on precipe of counsel, and was not defective or irregular in any respect. There was therefore no ground for quashing the writ. Bolton v. Robinson, 13 S. & R. 193, was a scire facias on a recognizance given on an appeal from an award of arbitrators. The recognizance was void and on that ground the trial court' quashed the writ. In reversing the judgment, Mr. Justice Duncan said : “ But I am not able to find any principle to justify the court in quashing the writ. The writ itself is a good writ; it sets forth a recognizance in legal form, and a forfeiture of it; it shows a good cause of action; the defendant should have been put to plead or to answer it, and the plaintiff could not be put out of court in this brief way. The judgment quashing the writ must, on this ground, be reversed with directions to the court of common pleas to reinstate the action.” Crawford v. Stewart, 38 Pa. 34, was debt on a surplus bond given by the purchaser of land sold for taxes. The court quashed the writ on the ground that the cestui que use had no right to bring the suit and must show that he was the original owner of the land at the time of the tax sale. The order quashing the writ was reversed, and in the opinion of the court it is said : “ When the writ was quashed it stood on the record, purely and simply an action of debt—'Unobjectionable in form, between competent parties—wherein there was due service of process, appearance, and plea by the defendant. There was no irregularity anywhere and the court had undoubted jurisdiction of both the subject-matter and the parties. Under such circumstances, wherein consisted the right of the court to dispose of the case in such a summary manner, against the con
The case in hand was an action of ejectment, and the proper plea, as directed by the statute, is not guilty. Under the plea, the defendants can avail themselves of the defense of res judicata, the ground on which the writ was quashed : Cist v. Zeigler, 16 S. & R. 282; Zeigler v. Fisher, 3 Pa. 365 ; Finley v. Hanbest, 30 Pa. 190; Black v. Tricker, 52 Pa. 436; Gosser v. Hickenlooper, 81* Pa. 281; Westcott v. Edmunds, 68 Pa. 34. The last case cited was an equitable ejectment. At the trial at nisi prius, before Thompson, C. J., the defendants offered in evidence the record and final decree in a former suit in equity between the same parties involving the same subject-matter. The evidence was excluded, and there being a conditional judgment for the plaintiff the defendant took a writ of error, assigning for error the rejection of his offer of evidence. The judgment was reversed. It was held that the final decree in equity was a bar to the suit at law and that the effect of the decree was the same whether offered in evidence or pleaded.
The same rule is applied in a suit in equity where the defendant seeks to avail himself of a former adjudication as a bar to a hearing on the merits. He must set up the former recovery by proper averments in his pleadings, and cannot take advantage of it by a motion to dismiss the bill; unless, possibly, where the bill itself discloses the former adjudication and the objection may be taken by demurrer: 9 Am. & Eng. Ency. of Pl. & Pr., 616; Givens v. Peake, 1 Dana, 225; Majors v. Majors, 58 Miss. 806.
