180 Pa. 476 | Pa. | 1897
Opinion by
This is an action of ejectment brought to recover possession of a tract of land in the 26th ward of the city of Philadelphia. The court below, in the absence of the plaintiffs, their witnesses and counsel, called a jury, allowed the defendants to present their evidence and directed a verdict in their favor. From the judgment entered on the verdict this appeal was taken. In Felts v. D., L. & W. R. R. Co., 170 Pa. 432, the court called a jury in the plaintiff’s absence and directed a verdict for the defendant. On appeal it was determined that the proceeding was unwarranted, and the judgment founded upon it was accordingly reversed. There is no room for distinguishing that case from this. According to the rule of the common law no verdict could be given unless the plaintiff by himself, attorney or
The rule applicable to the case before us is stated in 16 Am. & Eng. Ency. of Law, 733, as follows: “ If a plaintiff fails to appear either in person or by attorney when his case is called for trial, he will be considered as electing to become nonsuit and a judgment of nonsuit will be entered against him.” The court below should have conformed to this rule which, as we
Judgment reversed and venire facias de novo awarded.