Miller v. Rohrer

Opinion, Mr. Justice Sterrett:

Two personal actions appear to have been pending between the parties to this contention, at the same time and for the same cause of action. In the first suit, final judgment was entered for plaintiff before the second was called for trial.

The first action was commenced before Alderman Forney, from whose judgment defendants therein appealed, and filed their appeal to No. 46 of November Term 1885. On December 31, 1885, while that appeal was ponding, this suit, attachment under the act of 1869, was commenced. In August, 1887, more than eight months before it was tried, judgment in the appeal ease was entered in 'favor of Rohrer, the plaintiff, for $160.57 and costs. On the trial of this case, in April, 1888, he testified in substance that his claim in both cases was the same. On cross-examination he was shown the bill that was presented before the alderman, as the foundation of his claim, and said: “It is the same money that suit was entered for there, the same amount exactly, $143.81.” Again, on being shown the record of the first suit, Jeremiah Rohrer v. S. R. Miller & Co., No. 46 November Term 1885, he said: “ This judgment is for the same amount as that in suit; it was entered August 23, 1887, for plaintiff.” After plaintiff rested, defendants offered that record in evidence, but it was rejected. The court was then requested to instruct the jury that, under the evidence before them, their verdict should be for defendants. That was refused, and the jury was substantially directed to find for the plaintiff if they believed his evidence. The result was a verdict in his favor for $163.94.

The assignments of error are to the action of the court: 1st, in rejecting the record of the first suit, No. 46 November *388 Term 1885, and 2d, in directing the jury to find in favor of the plaintiff if they believed his testimony.

As to the first specification we have no doubt the record was competent evidence for defendants below. It tended to prove, still more conclusively, the fact elicited from plaintiff himself, that the cause of action in both suits was the same, etc. As we have seen, the plaintiff below, on cross-examination, testified without objection to every essential fact that would have been shown by the record, if it had been received in evidence. It was of course the best evidence, and as such defendants were entitled to it. In connection with other testimony it would have shown very clearly, if not conclusively, that both suits were for precisely the same cause of action; and, inasmuch as final judgment was entered in the first, before the second was called for trial, that judgment was necessarily a bar to recovery in the latter case.

The learned judge of the Common Pleas appears to have assumed that the proceeding by attachment under the act of 1869 was in no sense a personal action. In that he was mistaken. In Lieberman v. Hoffman, 2 Penny. 211 , it was held that such proceeding is to be regarded as a personal action. In the class of cases to which the act applies, the attachment is intended to secure the plaintiff by a lien in advance of judgment, but the efficacy of that security depends on the recovery of a final personal judgment. It was also held that the recovery of a final judgment for the same cause of action is a bar, notwithstanding the attachment was issued and served before the commencement of the suit on which the judgment was obtained, and though defendant in the attachment filed no. bond.

It is well settled that where two personal actions are instituted between the same parties for same cause of action, a recovery of judgment in one extinguishes the right to recover in the other, and gives to the plaintiff, in lieu thereof, a security of a higher order: Brenner v. Moyer, 98 Pa. 274 .

It follows from what has been said that the learned judge erred in charging the jury as he did. Aside from the excluded record evidence, the defendants, on the evidence of the plaintiff alone, had a right to insist on a verdict in their favor; and, if the case had been submitted to the jury on the questions of fact which that evidence alone tended to establish, the jury- *389 would have been warranted in finding in favor of plaintiffs in error. The assignments of error are both sustained.

Judgment reversed, and a venire facias de novo awarded.