Taylor v. Parkhurst

The opinion of the court was delivered by Kennedy, J. This cause came by appeal into the court below from the judgment of a justice of the peace, rendered by him, in favour of the defendant [200] in error, against the plaintiff in error, on a scire facias sued out against the latter, upon a judgment in favour of the former, obtained on the 15lli of June, 1839, for $82, besides the costs of suit. It appears that the plaintiff in error appealed, on the 22d of the same month, from tire judgment, on which the scire facias in this case was sued out, to the Court of Common Pleas of the county. That after the plaintiff in error appealed, the defendant in error, on the 22d of July, directed the justice to make the following entry: “The above suit-withdrawnby order of plaintiff this 22d day of July, a. d. 1839.” Whereupon notice was issued from the justice, the same day, notifying the defendant of the withdrawal by the plaintiff, which was afterwards returned served by the constable. After this, the plaintiff in error obtained a transcript of the judgment, and his appeal therefrom, certified by the justice in due form, as if he intended filing it in the Prothonotary’s office, on or before the first day of the next term of the Court of Common Pleas of the county, which was necessary if he intended prosecuting his appeal with effect. He, however, did not file it; by reason whereof his appeal became of no effect. But before the first of the next term came around, the defendant in error, on the 23d of July, 1839, the next day after he withdrew his suit before the justice, commenced a second action for the same cause, before the same justice of the peace, in -which he obtained a second judgment against the plaintiff in error, from which the latter appealed to the Court of Common Pleas of the county, where he pleaded the judgment in the first action against him as a bar to the second action- for the same cause ; and that the judgment so obtained was and continued in full force and unreversed. That the defendant in error, not being willing to encounter this plea, took a nonsuit in his second action; after which he sued out the scire facias in this case, on his first judgment, from which the plaintiff in error appealed, but failed to prosecute it. The justice, in this case, rendered a judgment in favour of the defendant in error, against the plaintiff in error, for the amount of the first judgment with interest thereon, and the costs of the same. The plaintiff in error, after having brought this case into the court below by appeal from the judgment of the justice of the peace, pleaded the withdrawal of the original suit by the defendant in error, as a bar to all further proceeding therein by him. The defendant in error, in reply thereto, alleged, that the plaintiff in error had pleaded the judgment, on which the scire facias was sued out in this case, as a bar to the second suit, brought against him by the defendant in error for the same cause, averring itto be in full force, and that he was therefore estopped from denying the existence, validity, or force of it, and was, consequently, bound to [201] pay it, unless he would show that it was paid, which was not pretended. The court below took this view of the case, and accordingly instructed the jury that the plaintiff there was entitled to recover. To this instruction of the court, the counsel of the defendant below excepted, and have assigned it here for error. It is unnecessary to say what would have been the effect of the defendant in error’s withdrawal of the original suit in this case before the justice of the peace; whether it would have amounted to a retraxit or not, if the plaintiff in error had' considered and pleaded it as such, in the second action brought against him for the same cause. But instead of doing this, he seems to have considered the judgment rendered therein as being still in full force, notwithstanding the withdrawal, and certainly treated it so by pleading it as such in bar to the second action. Having thus pleaded it as a judgment in full force, he thereby estopped himself from denying it afterwards; and .not having shown in the trial, that it was reversed, released, paid, or in any way satisfied, we think the court below charged the jury correctly in telling them that the defendant in error was entitled to recover. ' The judgment is therefore affirmed.