Blackburn v. Watson , 85 Pa. 241 ( 1877 )

Mr. Justice Gordon

delivered the opinion of the court, November ‘5th 1877.

The former suit, the pendency of which was pleaded in abatement of the one now being tided, was by Oliver Blackburn against Robert Watson, James Watson and John Watson, partners, doing business as R. & J. Watson. This firm, by the pleadings, is charged as endorser of certain promissory notes passed by it to the plaintiff. The suit, now before us, is against James Watson alone, and the declaration charges his liability, on these same notes, as arising from his having, fraudulently and without authority, endorsed the firm name thereon and so passed them to the plaintiff.

It was said in Cornelius v. Vanarsdallen’s Adm’r., 3 Barr 434, that to sustain the plea of the pendency of a prior action it is necessary, not only that the cause of action, but the parties also be the same. Tried by this rule and the plaintiff below has no standing under his plea, since an inspection of the records in the two cases at once reveals the fact that the parties defendant are not the same. In the one case the action is against a firm — on a joint or firm endorsement; in the other the action is against James Watson alone, and upon a several liability in which the partnership had no interest, and which can involve it in no responsibility. It is, hence, apparent that the judgment of the court below, on the plea in abatement, was erroneous.

It has been urged that there are other grounds, apparent in the pleadings, on which the judgment should be sustained. But this is not so, for the plea in abatement is a dilatory plea and the defendant can have no other judgment than that the writ- be quashed; hence, it is manifest, however apparent it may be from the plaintiff’s narr., that he has no good cause of action, yet a general judgment cannot, for such cause, be entered against him in the issue now pending. If the declaration is faulty advantage thereof may be taken on demurrer, but of this we can take no notice, for, as the matter now stands, we examine the records only so far as is necessary to determine the questions raised by the plea in abatement.

Judgment reversed, and a procedendo awarded.