Kuhns v. Bowman , 91 Pa. 504 ( 1880 )


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  • Mr. Justice Mercur

    delivered the opinion of the court,

    This was an action of trespass, quare clausum fr eg erunt. The case presents a single question. The facts necessary for an understanding of the case are these: In March 1869, John Kuhns, the plaintiff in error, brought an action of ejectment against the defendant in error for the land on which this alleged trespass was committed. In November 1876, he recovered a verdict for the land, and judgment thereon was duly entered. During the pendency of that action, in October 1876, the defendant in error brought this action of trespass against Kuhns and his sons, who were acting under him, for alleged trespass committed in September previous on the same land. In March 1877, the defendant in error *506also brought an action of ejectment against said Kuhns for the same land. Both cases were tried together before the same jury. The learned judge charged the jury substantially, that if they found in favor of the plaintiff below, in the action of ejectment, to also find a verdict in his favor for nominal damages in the action of trespass, and added, “ In other words, both stand or fall together, as far as any contested question in the causes you are sworn to try is concerned.” This charge is assigned for error.

    A consideration of this assignment involves an inquiry into the effect to be given to the verdict and judgment procured by Kuhns. That the recovery was no bar to a second action of ejectment for the same land is well recognised; but the present question is, what was its effect as to the right of the plaintiff therein to recover mesne profits. That he might have recovered them at the same time he recovered in the ejectment, on his giving due notice of his intention to claim them, must be conceded. Failing to so do, the verdict and judgment were conclusive evidence of his right to mesne profits from the time of the commencement of the suit until the judgment, unless the defendant left the possession after service of the writ, which is not pretended in this case. This conclusive effect is declared by numerous English and American authorities. We will content ourselves by citing two of our own cases, in which many of the authorities are collected. They are Man v. Drexel, 2 Barr 202, and Drexel v. Man, Id. 271. So conclusive is a verdict and judgment of the right to mesne profits, that in this last case it was held, though the defendants’ title be established by two verdicts and judgments between the same parties and on the same title, one of which was prior, and the other subsequent to the time for which the recovery of mesne profits was sought, yet they constituted no bar to a recovery for the time covered by the immediate action of ejectment. Thus, under the well-settled rule of law, Kuhns acquired a conclusive right against the defendant in error to recover mesne profits for the length of time that action of ejectment was pending. The latter now claims to recover of the plaintiffs in error for damages done by them to the land during the same time. If the defendant in error had done in September 1876, the identical act of which he now complains, he would have been unquestionably liable in damages therefor to Kuhns. It cannot be that he can now recover in trespass against the plaintiffs in error for that act. To so hold would fritter away the substantial right to recover damages which Kuhns acquired by his recovery in ejectment. The learned judge erred in holding that both actions stand or fall together. There should have been no recovery in this action of trespass.

    Judgment reversed and a venire facias de novo awarded.

Document Info

Docket Number: No. 187

Citation Numbers: 91 Pa. 504

Judges: Gordon, Green, Mercur, Paxson, Sharswood, Sterrett, Trunkey

Filed Date: 1/5/1880

Precedential Status: Precedential

Modified Date: 2/17/2022