Minium v. Hoig , 34 Pa. 396 ( 1859 )

The opinion of the court was delivered by

Lowrie, C. J.

In a feigned issue, we have no doubt, that a defendant may insist on the ordinary rules of forcing the plaintiff to trial, and may nonsuit him for not trying: Tidd 760; 4 Term R. 767; 5 Moore 473. Or, on satisfying the court where the principal cause is, that the plaintiff is vexatiously delaying the trial, that court may direct tlie matter in issue to be taken pro eonfesso against the plaintiff: 11 Archb. Pr. 349; 3 Dan’l. Ch. Pr.1299.

In this case, the plaintiff was regularly nonsuited, and after-wards paid the costs. Eight or ten years, afterwards, the plaintiff moved the Common Pleas to take off the nonsuit, and it was done. This was entirely irregular. The issue was from the Orphans’ Court, ancillary to the principal proceeding there; and when the issue was determined by trial or nonsuit, and the passage of' the term, all further remedy, by new trial or otherwise, must co,me from the Orphans’ Court: Tidd 913; 3 Dan’l. Ch. Pr. 1306; 11 Price R. 379 ; 2 Id. 399 ; 6 Taunt. 444 ; 8 Dowl. & Ry. 71; 11 Ves. 52; 9 Id. 155. The Common Pleas had no authority to take off the nonsuit, without an order in the Orphans’ Court allowing it. And the Orphans’ Court, on hearing all the equities arising out of the plaintiff’s delay, might have refused to allow it, and have left him to his ordinary remedies.

But we cannot reverse this judgment, for there is none on the record, and therefore the writ of error does not lie. The writ its.elf shows that there must be a judgment; and it can be further .seen in the acts relative to feigned issues out of the Orphans’ Court and Common Pleas: Acts of 16th June 1836, § 87, and 10th April 1848, § 8, Purd. 343, § 99, and 311, § 3.

Writ of error quashed, and record remitted.