Vivas v. Aswan

OPINION OF THE COURT BY WHITING, JJ. Tbe plaintiff brought an action of assumpsit against defendant in the District Court. The defendant entered a plea in bar wherein he set up that in July, 1897, the plaintiff recovered a judgment against defendant Aswan in the District Court of Honolulu for the same-identical debt now sued for, and that Aswan appealed therefrom to the Circuit Court, and thereafter, at the special December term of that Court, the action came for trial before a jury, and' after the plaintiff closed his case, the Court upon motion of defendant and against the objection of plaintiff, ordered that the plaintiff be non-suited, which said judgment (of non-suit) is still in force and unreversed. The District Magistrate sustained the plea in bar and gave judgment for the defendant. The plaintiff appeals to this Court on six points of law: 1. That the District Magistrate erred in sustaining defendant’s plea in bar. 2. -That a non-suit for variance between proof and pleadings is no bar or estoppel to a subsequent suit between the same parties although involving in part the same facts. • A. C. Correa and A. S. Humphreys for plaintiff. J. A. Magoon for defendant. The other four points state in different language the same question of whether a judgment of non-suit is a bar to subsequent action between the same parties for substantially the same cause. . The District Magistrate clearly erred in sustaining the plea in bar. The authorities hold with great unanimity that a judgment of non-suit is no bar to another action for the same cause. Morgan v. Bliss, 2 Mass. 111. Bridge v. Sumner, 1 Pick. 371. Ensign v. Bartholomew, 1 Met. 274. 16 Am. & Eng. Ency. Law, 730, 747. Freeman on Judgments, Sec. 261. 2 Black, Judgments, Sec. 699. This plea in bar is bad and without merit. The appeal is sustained and the judgment vacated and the case is remanded to the District Magistrate, who is directed to overrule the plea in bar.