Township of Moreland v. Gordner , 1885 Pa. LEXIS 490 ( 1885 )

Chief Justice Mercur

delivered the opinion of tho court,

It is true on an appeal from tho decision of a justice of the peace to tho Common Pleas the statute provides that the cause shall be decided in the said court on its facts and merits only, and no mistake in the form of the action shall prejudice either party in the court to which the appeal shall be made. This however assumes that the justice of the peace had jurisdiction of tbe cause of action.

An action on the case for a tort is not within the jurisdiction of a justice of the peace. Objection to Ms jurisdiction may be taken at any stage of the case. If the justice has not jurisdiction the Common Pleas cannot have it on appeal: Collins v. Collins, 1 Wr., 887.

To sustain the plea of former recovery in the present case, the plaintiff in error gave in evidence the record of a judgment obtained against liim before a justice of the peace. He however had appealed from that judgment, and filed tho same in the Common Pleas. The transcript showed the action to be in ease for a tort for' consequential damages, not within the jurisdiction of the justice. This was fatal to the ease, and on motion it would have been tbe duty of tbe court to dismiss the action: Goddard v. McKean, 6 Watts, 337. Practically the canse was as effectively terminated by the plaintiff therein suffering'a nonsuit. It ended the ease. The effect is not the same as if the party appealing had withdrawn his appeal. If this had been the ease the effect would have been to reinstate the judgment. In the present ease the defendant in the judgment appealed therefrom. During the pendency of that appeal the judgment was superseded. The case was an action pending. Thereupon the plaintiff therein by suffering a non-suit, not only put the case out of the Common Pleas, but left no judgment before the justice. It follows the learned judge was right in holding that the voluntary nonsuit was no bar to another suit for the same cause of action, in a court having jurisdiction of the case.

Judgment affirmed.