183 A. 41 | Pa. | 1936
Suit in trespass for personal injuries was begun by plaintiff against defendant in May, 1933, and was listed for trial on October 24, 1934. The case was called on the next day, but upon failure of plaintiff or his counsel to appear a nonsuit was entered. A subsequent motion to take off the nonsuit was refused. No appeal was taken. Thereafter, in February, 1935, within the statutory period, the present suit was instituted, between the same parties and based upon the same accident. Defendant filed a petition praying for a rule for judgment against plaintiff on the ground that the matter in controversy was res adjudicata. Argument on the petition and plaintiff's answer thereto was had, and the rule was thereupon made absolute and judgment entered in defendant's favor. This appeal followed.
In explanation of his failure to appear when the case was called for trial in October, 1934, plaintiff's counsel states that the case was at the bottom of the list, that a number of prior cases had been indicated as ready for trial, and that his own case was called only because the trial list unexpectedly "broke down." In short, it is claimed that counsel had reason to believe the case would not be called when it was. Although a jury was sworn, no testimony was taken, and the nonsuit was undoubtedly entered because of the lack of appearance on plaintiff's side.
It is thus clear that at no point in the course of the first suit was there any sort of trial or hearing on the merits of plaintiff's case. The rule absolute for defendant *554
in the present case was therefore error. It has long been established that a prior judgment or decree between the same parties on the same cause of action is not res adjudicata and therefore not a bar to a second suit when the merits of the controversy were not passed upon in the first action: Carmony v. Hoober,
Harvey v. Pollock,
The case now before us is clearly not within the Act of March 11, 1875, P. L. 6. That act provides for the entry of a nonsuit by the trial judge "if, in his opinion, the plaintiff shall have given no such evidence as in law is sufficient to maintain the action." It is further provided that, upon refusal by the court in banc to set aside the nonsuit, the plaintiff may remove the record into this court for review, "with like effect as he might remove a judgment rendered against him upon a demurrer to evidence." It is quite apparent from the language of the act that it contemplates only a case where plaintiff has offered or has had full opportunity to offer evidence in support of his claim. The act and the cases under it are therefore not pertinent to the present situation. *556 What the result would be if plaintiff had presented his case in the first suit we need not now consider. Plaintiff has not had his day in court, and he may not be deprived of it under the circumstances here shown.
Judgment reversed with a procedendo.