59 Pa. Super. 329 | Pa. Super. Ct. | 1915
Opinion by
This was an action of assumpsit. Pursuant to notice
The controlling question arising upon the record is, whether it was legal to proceed with the trial while the discontinuance remained. Clearly, it was legal if rule 57 of the courts of common pleas of Philadelphia county is valid. It reads as follows: “If, in any case in which the defendant sets up a counterclaim for which he might have a certificate in his favor, the action of the plaintiff is stayed, discontinued, or a voluntary nonsuit suffered, the counterclaim may, nevertheless, be proceeded with.” Whether this rule would apply where the plaintiff discontinued by express leave of court, and whether it is valid so far as it relates to voluntary nonsuits, are questions not raised by this record, and, therefore, no opinion upon them will be expressed. We make this remark because the cases cited by the appellant relate for the most part to voluntary nonsuits or action by the plaintiff which was deemed by the court equivalent to an election to take a voluntary nonsuit. While a discontinuance and a voluntary nonsuit do not differ greatly in their legal effect, yet a well-defined distinction between them has been uniformly recognized in practice. Whatever may be said as to the absolute
The judgment is affirmed.