203 Pa. Super. 389 | Pa. Super. Ct. | 1964
Opinion by
The plaintiff in August, 1960, entered judgment by confession in an amicable action for the rent due for the balance of the term of a five-year lease executed in 1956. The court made absolute a rule to open the judgment upon the defendant’s allegation of an oral novation in December, 1958, discharging him from any further liability under the lease. The plaintiff denied the allegation and the parties went to trial on this issue.
At this trial the plaintiff, after putting in part of her case, suffered a voluntary nonsuit. Later she moved to take off the nonsuit. Although such a motion is a prerequisite to a new trial when there has been a compulsory nonsuit, which is conclusive if not taken off (Pa. R. C. P. No. 231(b); Act of March 11, 1875, P. L. 6, §1, 12 PS §645), it has no function fol
The plaintiff followed Pa. R. C. P. No. 231(a) literally
After the plaintiff filed her complaint in the new action, the defendant filed preliminary objections on the ground that the action was res judicata because the plaintiff’s judgment in the first action had been marked satisfied. The court below sustained these objections and dismissed the complaint.
While the order appealed from appears correct on the face of the record, closer scrutiny reveals that the satisfaction was entered in error and, even though the plaintiff herself was chiefly responsible for that error, justice requires that it be rectified.
It is quite obvious from his total conduct in the case that the plaintiff’s attorney did not intend to destroy his client’s cause of action by satisfying her own
The prothonotary had no authority to satisfy the plaintiff’s judgment against the defendant upon the order of the attorney for the defendant, the judgment-debtor.
If a judgment for costs on the nonsuit had been entered by the defendant, the order to satisfy could have operated on that. But no such judgment was ever entered. The only judgment of record, and consequently the only judgment which could be satisfied of record, was the plaintiff’s judgment.
In our opinion, the plaintiff’s judgment should not have been satisfied and the record should be corrected to reflect this since (1) the order to satisfy the judgment was executed by the defendant’s attorney only and (2) the plaintiff’s attorney who presented the order evidently intended only to satisfy his client’s liability for costs as a result of the abortive trial on the petition and answer.
We conclude that the order of satisfaction should be stricken from the record, the court below should order the record to be amended to show that the costs arising from the trial ending in the voluntary nonsuit have been paid and the issue as to the novation should be retried.
' The plaintiff’s faulty procedure has resulted in a situation under which the court below very reasonably decided that since she caused her own judgment to be satisfied of record the matter was res judicata against her. However, it would appéar that unless there was
Order reversed. Tbe case is remanded for further proceedings in accordance with this opinion.
The plaintiff need not commence a new action in order to retry the issue in a case where, as here, the plaintiff retains his confessed judgment, even though it has been opened, until there is a determination adverse to his right on the trial of the issue made by the petition and answer. The preferable procedure would be to relist that issue for trial.
Incidentally no notation of satisfaction of the plaintiff’s judgment was made in the margin of the judgment index, as is required by the Act of June 8, 1891, P. L. 244, §1, 12 PS §979.