Crumley v. Lutz , 180 Pa. 476 ( 1897 )

Opinion by

Mr. Justice McCollum,

This is an action of ejectment brought to recover possession of a tract of land in the 26th ward of the city of Philadelphia. The court below, in the absence of the plaintiffs, their witnesses and counsel, called a jury, allowed the defendants to present their evidence and directed a verdict in their favor. From the judgment entered on the verdict this appeal was taken. In Felts v. D., L. & W. R. R. Co., 170 Pa. 432, the court called a jury in the plaintiff’s absence and directed a verdict for the defendant. On appeal it was determined that the proceeding was unwarranted, and the judgment founded upon it was accordingly reversed. There is no room for distinguishing that case from this. According to the rule of the common law no verdict could be given unless the plaintiff by himself, attorney or counsel appeared in court. In the event of his nonappearance he was nonsuited: 3 Bl. Com., 376. This rule is in full force in Pennsylvania, except so far as it may have been qualified by statute: McCredy v. Fey, 7 Watts, 496. The legislation on this subject will be found in the Act of February 21, 1767, sec. 1,1 Sm. L. 271, the Act of March 80,1812, 5 Sm. L. 361, the Act of March 28, 1814, 6 Sm. L. 208, and the Act of April 14, 1846, P. L. 329. The last mentioned act is limited in its application to the “city and county of Philadelphia.” The only restriction upon- the plaintiff’s right of nonsuit appears in the act of 1814, which provides that “ whenever on the trial of any cause, the jury shall be ready to give in their verdict the plaintiff shall not be called, nor shall he then be permitted to suffer a nonsuit.” This restriction is construed to mean that the plaintiff cannot suffer a nonsuit where the jury in reply to the formal inquiry of the prothonotary have officially announced their readiness to give their verdict: McLughan v. Bovard, 4 Watts, 308, and Easton Bank v. Coryell, 9 W. & S. 153. There is no warrant in the act of 1814, or in any of our statutes relating to nonsuits, for calling a jury and taking a verdict in the absence of the plaintiff and his counsel. The settled practice is, where the plaintiff does not appear in person or by attorney when his case is called for trial, to enter a nonsuit. This practice is in conformity with our statutes and the decisions of this court, and the right of nonsuit is favored and protected by them. It is a right which is as valuable to the plaintiff in an action of ejectment as to the plaintiff in any other action. It requires two verdicts and judgments thereon for or against his claim to finally establish or defeat it. He is not barred from bringing a new action of ejectment until after two decisions had against him upon a full view and consideration of the whole case: Mercer v. Watson, 1 Watts, 344, and Treaster v. Fleisher, 7 W. & S. 137. The decision under consideration is not of this character.

The rule applicable to the case before us is stated in 16 Am. & Eng. Ency. of Law, 733, as follows: “ If a plaintiff fails to appear either in person or by attorney when his case is called for trial, he will be considered as electing to become nonsuit and a judgment of nonsuit will be entered against him.” The court below should have conformed to this rule which, as we have seen, is clearly in accord with the statutes of the commonwealth and the decisions of this court. Not having done so it should have sustained the motion in arrest of judgment and set aside the verdict. The facts recited in the first part of this opinion sufficiently appear in the record as approved by the trial judge, and were admitted on the argument at bar.

Judgment reversed and venire facias de novo awarded.