Felts v. Delaware, Lackawanna & Western Railroad

Opinion by Mr. Justice McCollum, The questions raised by this appeal are whether the learned [436] court below erred in refusing to direct the removal of the case under the act of April 14,1834, P. L. 395, to the court of common pleas of Pike county, and in calling a jury and taking a verdict against the plaintiff in his absence and after he had filed his written declination to appear and proceed to trial in Lackawanna county. In answering the first question we are required to consider and determine whether the act of 1834 was supplied or repealed by the act of March 30,1875, “ relating to and authorizing changes of venue in civil cases.” The later act was obviously passed for the purpose of giving effect to the constitutional provisions relative to the change of venue in civil cases, and it expressly repealed all prior legislation on the subject. In Wattson et al. v. The Chester and Delaware Railroad Co., 83 Pa. 254, an effort was made to set aside the removal of a case under the act of 1834 and the act of April 28,1870, P. L. 1292, on the ground that the constitution was adopted and in force before the removal, and that the provisions in it relative to the change of venue in civil cases supplied and repealed these acts. The effort failed because in the opinion of this court the constitution did not operate, eo instante, as a repeal of them, but there was no claim or suggestion by any one that legislation in conformity with its provisions on the subject would not have done so. We have a fair illustration of the professional thought respecting the effect of the act of 1875 upon prior-legislation in regard to change of venue in the effort heretofore made in this case to remove it for trial to another county: Felts v. Railroad Co., 160 Pa. 503. The act of 1834 was not called in its title an act relative to a change of venue in civil cases, nor an act for the removal of cases brought by and against canal and railroad companies. It was, however, in effect an act relative to a change of venue in civil cases brought by and against such companies, and may be justly regarded as fairly within the repealing clause of the act of 1875. It is contended by the learned counsel for the railroad company that the case at bar is not within the purview of the act of 1834 because other parties are made codefendants with it. But in the view we have taken of the effect of the act of 1875 upon the act of 1834 it is not necessary to consider this contention. The general rule is that the plaintiff may suffer a nonsuit before or at any stage of the trial, and we are not prepared to [437] say that this case is within any exception, to it, “No formality is required as to the manner in which a plaintiff may take a nonsuit. He may absent himself from court when his presence is required and thus accomplish his purpose: ” Am. & Eng. Ency. of Law, vol. 16, page 729. This is precisely what was done in the ease now before us. Having absented himself from court when his presence was required there for the purposes of the impending trial, he may be considered as having elected to suffer a nonsuit. But we fail to discover anything in the record which justified the learned court below in calling a jury and taking a verdict against him under the circumstances appearing in the case. For this reason we are constrained to reverse the judgment. If the plaintiff is desirous of trying the case in the court in which he brought it, he is at liberty to do so on withdrawing his declination at or before the time it is called for trial; otherwise a nonsuit may be entered in accordance with the practice in such cases. The first and second specifications of error are overruled and the third specification is sustained. Judgment reversed and venire facias de novo awarded.