Groff v. Ressler's Administrator

| Pa. | Jul 1, 1856

The opinion of the court was delivered by

Lowrie, J.

The Hundred Dollar Act requires mutual claims to be settled in one action; but this does not absolutely prevent parties from carrying on separate suits at the same time before a justice of the peace for their mutual demands, and where this is done without objection both proceedings are valid.

Such was the origin of this case, and both parties obtained judgments for their respective demands. But Ressler was dissatisfied with the judgment against him, and appealed. What does his appeal mean, except'that the matter tried by the magistrate had been wrongly decided, and that he desired to have it tried again? The appeal was referred to arbitrators, when the same matter was tried again and decided in the same way. Again he appealed, and again failing or being about to fail in his defence on the same matter, he set off bis larger judgment against Groff, obtained before the justice -of the peace, and put Groff into all the costs of a dispute which was réally decided in Groff’s favour. Is this right ?

One of the most common of all reasons for rejecting set-offs, or admitting them on terms, is to prevent them from unjustly affecting the costs. If Ressler had been bound by law to set off his judgment or lose it, the set-off would, of course, have been right, however it might have affected the costs. But he was not, for it was no longer a disputable claim, and he could set it off against Groff’s judgment after it should be obtained, and ran no risk of being cut out of his rights by a subsequent assignment: 6 Ser. & R. 448; 8 Watts 443. By setting it off as he did, he was not making an end of litigation, but rather protracting it or renewing it, by casting a settled dispute into the same crucible with a disputed one. And justice forbade him to do it in such a way as to throw all the costs of his own unjust litigation on the other party, and forbids any rule that would allow him to do it.

Ressler’s suit was brought after Groff’s; and if we are to presume that the proceedings before the justice of the peace were entirely regular, then it follows that Ressler instituted a separate suit because his claim was not a proper subject of set-off, say because he had acquired title to it after Groff’s suit was brought. The principal objection to allowing such a set-off, arises from its unjust effect upon the costs: 13 State Rep. 554; 1 W. & Ser. 418; 9 Watts 126. In relation to the proceedings before the justice of the peace, assume that it was because Ressler could not that he did not set off his demand, and that he may do it now, and we permit a defendant to appeal from a just claim for the mere purpose of setting off an admitted one, which is already established by judgment, and which could be set off on mere motion, and thus throw the costs of a vain proceeding on the party who is not in fault.

The set-off was not tried by the jury, for it was founded upon a record and was tried by the court, and the only issue tried by the jury, and which occasioned all the costs, was the issue on the principal claim, and that was found in favour of Groff, and he ought not to pay the costs of Ressler’s false clamour.

Ressler’s judgment was obtained after this suit was brought, and if it had been pleaded formally puis darrein continuance, as it is in its nature, it would have conceded the plaintiff’s right to costs on the issue found in his favour: 9 Barr 214. But it stands on the short plea of set-off, and its true character does not appear until the judgment is offered in evidence. Then it appears that the subject-matter of the short plea of set-off is a judgment obtained since this suit commenced. The plea is in the nature of one puis darrein continuance, and since the verdict in the defendant’s favour is founded on it, the plaintiff is entitled to his costs.

Judgment. — June 6, 1855. This cause came on for hearing on a writ of error to the Court of Common Pleas of Lancaster County, and was argued by counsel ; and now, on consideration thereof, it is considered and adjudged that there is error in the record of the judgment in this, that the plaintiff was adjudged to pay to the defendant his costs, and that part of the said judgment is reversed; and it is now here considered and adjudged that instead thereof the plaintiff do recover from the defendant his full costs in this behalf expended, and the record is remitted to the said Court of Common Pleas for execution.