126 A. 246 | Pa. | 1924
Argued May 20, 1924. The plaintiff, Davis, entered into an agreement with Hillman, defendant, under the terms of which certain coal land in Washington County was to be acquired, and, in pursuance of the alleged understanding, bought it for the sum of $574,257.64, the necessary purchase money being advanced by the latter. It was claimed by the former that one-half of any profits which might accrue on a resale were to be paid to him. Hillman denied the existence of such an agreement, and suit was brought in 1921 to recover fifty per cent of the increase which it was averred could have been obtained by disposing of the property on a royalty basis, the statement setting forth that, had the proposed lease been consummated for the amount offered, large gains would have resulted, and to a share of this sum plaintiff insisted he was entitled.
An affidavit of defense was filed, raising the legal question as to the effect of the statute of frauds, and the contention of the defendant that the alleged contract was unenforceable was upheld by the lower court, when it then ordered, "The judgment to be entered is tantamount to a judgment of compulsory nonsuit," and thereafter directed an order in favor of the defendant, from which no appeal was taken.
Later, a second suit was instituted by the plaintiff based on the same cause of action. A statutory demurrer *153 was again interposed, and, after argument, on March 7, 1923, "The question of law raised by the affidavit of defense was determined in favor of the defendant." Davis then appealed to this court, but upon the advice of counsel that the decree entered was interlocutory, and not final, withdrew it. In 1924, his counsel caused a discontinuance of his suit to be filed in the court of common pleas. This was followed by a petition to strike the entry off, for the reason that it had been made without notice, and, if allowed to remain, the rights of the defendant would be jeopardized, since this action would make possible the institution of another suit for the same cause, — twice dismissed for legal reasons, as hereinbefore noted. The disputed question was heard, and the learned court below refused the relief asked, and it is from this order that the present appeal was taken by Hillman.
It will be observed that the decree rendered in the original action was not brought up for review. The same legal defense was raised later in the second case, but in the order entered in 1923, though the legal contention of the defendant is sustained, no formal judgment in his favor appears. It is true that an appeal therefrom was taken, but the order was of such character as to make consideration by this court impossible at that time: Miller Paper Co. v. Keystone C. C. Co.,
Under the terms of the Practice Act of May 14, 1915, P. L. 483, when the claim filed is not sufficiently specific, the appropriate remedy is a rule for a more detailed narration of facts, to be followed by a motion for nonpros if the court makes the rule absolute and its order to file a supplemental statement is not complied with: Rhodes v. Terheyden,
Later, a discontinuance was entered by plaintiff without any special leave of court, and it is from the refusal to strike it off that the present appeal is taken. Ordinarily, consent to terminate an action should be preliminarily secured, but, where it is actually recorded, there is a presumption that it was approved. If, upon application, the court refuses to disregard it, it is further to be presumed that tribunal believed the action to be proper, and, in the absence of abuse of judicial discretion, its order will be upheld. This rule was early recognized in Pennsylvania (Schuylkill Bank v. Macalester, 6 W. S. 147), and has been followed in our later cases: Com. v. Magee (No. 1),
It is insisted in the present instance that the refusal works a disadvantage to the defendant, in that he may be forced to inconvenience and expense, if a third suit should be instituted, and that, the court having twice passed on and upheld the legal defense set up, no further proceeding should be permitted. This overlooks the fact that no formal judgment for the defendant was entered in the second suit, and no appeal was taken from the order in the first. Defendant had the right, under the Practice Act, to ask that this be done, and had such order been secured and remained unappealed from, the plaintiff *155 would in the future have been debarred from making the same claim against the defendant. Until a formal judgment was entered the proceeding was not ended, and the right of plaintiff to terminate it by voluntary action, subject to control of the local court, remained.
It therefore follows that the discontinuance was permissible, and, though not previously authorized, yet, in effect, it was recognized in the order refusing to strike it off. We cannot say that the power lodged in the learned court below was improperly exercised. The assignments of error cannot, therefore, be sustained.
The decree entered is affirmed at the costs of appellant.
