Armstrong County v. Plumcreek Township Overseers , 158 Pa. 92 ( 1893 )

Opinion by

Mr. Justice Thompson,

The conclusiveness of the order discharging the rule under the first petition is decisive of appellant’s contention in this case. That order was made “ without prejudice to the county as to further proceedings against the township of last settlement when ascertained.” Armed with this apparently roving commission appellant proceeded against several townships, and after failure in every instance finally made a second attack upon the appellees. In the order committing the lunatic, the court granted a rule upon the Overseers of Plumcreek Township, the appellees, to show cause why they should not pay the expenses and costs of the proceedings in lunacy. The appellees by their answer denied the liability and the settlement. The basis of any liability on the part of appellees to pay the expenses and costs referred to rested upon the legal settlement or residence of the lunatic in Plumcreek township. It is manifest that in discharging the rule the court decided that the appellant had failed to establish this ground of liability, and therefore determined the questions now raised in this proceeding. A judgment between the same parties is conclusive of matters determined or which might have been determined: Pennock v. Kennedy, 158 Pa. 579.

As the evidence is not before us, the assignments of error touching the record present the only matters for consideration.

■ That record shows the rule discharged “ without prejudice to 'the county to proceed against the township of last settlement when ascertained.” This dischax’ge of the rule ended the coixtention as to the appellees, and was a determination against appellant. Up to the filing of the present petition, years havixxg elapsed, that determination remained unquestioned by appellant. The words “ without prejudice to the county as to further proceedings against the township of last settlement when ascertained” relate to townships other than Plumcreek. The answer in that proceeding and the discharge of the rule established this conclusion. In the answer filed by appellees in the present proceeding it is averred that the rule was dischaxged “ upoxx testimony taken and argument of said rule.” Thus it appeal’s 'after testimony taken and argument a decision upon the merits of the case was reached and the rule accordingly discharged. As to appellees, it was a final determination of the questioxx of settlement and residence, and the addition of the words ‘‘ without prejudice,” etc., did not change it. As there is no evidence before us, and as the answer of the appellees denies the last place of residence or settlement of the lunatic in- Plumcreek township, there is nothing to warrant the conclusion of any liability on the part of appellees.

The assignments of error are not sustained and the judgment is affirmed.