216 Pa. 374 | Pa. | 1907
Opinion by
On April 15, 1905, John L. Roney, the plaintiff in the present suit, brought an action of assumpsit at No. 177, May Term, 1905, of the common pleas of Washington county, against Jane R. Herron, the present defendant’s testatrix, to recover on a promissory note of which the following is a copy :
“ $3,000.
August 18, 1899.
“ One day after date I promise to pay to the order of John L. Roney three thousand dollars without defalcation for value received.
[Seal] “Jane R. Hebbon.
Witness :
[Seal] John Andebson.”
The defendant appeared and pleaded non assumpsit. The
On February 8,1906, John L. Roney brought the present action of assumpsit in the common pleas of Washington county against John S. Westlake, executor of Jane R. Herron, deceased, and the statement claimed to recover the debt and interest due on the note on which the former action was brought. The defendant pleaded non assumpsit, payment, set-off, statute of limitations, and “ that all matters set forth in the plaintiff’s statement had been adjudicated as will appear by the record at No. 177, May Term, 1905, of this court.” On the trial of the cause, the defendant put this record in evidence to sustain his plea of res judicata. The court directed a verdict for the plaintiff on the evidence submitted, and reserved the question whether the plaintiff’s claim had been adjudicated in the former action. Subsequently, in an elaborate and satisfactory opinion, the court entered judgment for the defendant on the question reserved. The plaintiff has appealed. An examination of the record of the first case shows that on th§ trial the plaintiff proved the execution of the note by the attesting witness. The note was then offered in evidence and, upon objection by defendant’s counsel, was excluded on the ground that it was not stamped as required by the war revenue act of congress. The plaintiff offering no additional testimony, the jury under the instructions of the court rendered a verdict for the defendant on which judgment was subsequently entered.
A month prior to bringing the present suit, the plaintiff had the collector of customs place the proper revenue stamp on the note. On the trial of this cause, the plaintiff having proved the maker’s signature put the note in evidence and rested. The defendant then put in evidence the record of the former action, and the case was closed. Subsequently judgment non obstante veredicto was entered for the defendant. The only question on this appeal is whether this record is, as held by the court below, a bar to the present suit. It is difficult to see how this question can be answered in the negative.
There is and can be no doubt as to the issue raised by the pleadings, and determined by the trial and judgment in the first action, and that is, whether Jane H. Herron signed, sealed and delivered to the plaintiff the note, and whether she or her estate still owed the claim at the time the suit was brought. The record conclusively shows this to have' been the issue tried and determined in the first suit. The issue was tried before the court and a jury in the usual, ordinary way in such cases, and the trial resulted in a verdict in favor of defendant, not on a technicality, but on the merits of the case, and because the evidence of the plaintiff was not sufficient to sustain the issue directly raised by the pleadings. The plaintiff was required to support the issue formed by the pleadings by sufficient evidence, and if he withheld the evidence or any part of it and the verdict and judgment for that reason went against him, he
In -the present suit, the record discloses that it is between the same parties and was brought on the same note or for the samé cause of action as the former suit. It is obvious that it would require the same evidence to sustain both actions, which, it is said in numerous cases and approved by Judge Fbeeman in his work on judgments, is the test as to whether a judgment is a bar to a subsequent action: 1 Freeman on Judgments, § 259 and cases cited in note including Marsh v. Pier, 4 Rawle, 273. It is contended, however, and it is the ground on which the plaintiff seeks a reversal on this appeal, that the former judgment was not upon the-merits of the case but because “ the plaintiff could not call upon the estate of Jane R. Herron to
We are of opinion that the trial and judgment in the former case conclude the plaintiff as to the liability of Jane R. Herron or her estate on the note in suit, and is a complete bar to any subsequent suit involving the same issue and for the same cause of action.
The ease in hand must be distinguished from that class of eases where the judgment set up in bar of the second action is 'not upon the merits of the question involved in litigation. Those cases are where the judgment is founded upon a lack of jurisdiction, a nonjoinder or misjoinder of parties, plaintiff or defendant, a misconception of the form of pleading, a formal or technical defect in the pleadings, or the like: 24 Am. & Eng. Ency. of Law, 2d ed., 794; or where the suit is discontinued, the plaintiff becomes non suit, the debt is not yet due, or there is a temporary disability of the plaintiff to sue: 1 Greenleaf on Evidence, secs. 529, 530; Weigley v. Coffman, 144 Pa. 489. Judgments in those cases are not obtained upon the merits, and hence are not a bar to another action. But here, no reasons of this character existed in the first action to prevent a trial and determination of the cause upon the merits, and therefore the judgment is conclusive on the parties as to the right of the plaintiff to recover on the note.
The assignments of error are overruled and the judgment is affirmed.