Fitzpatrick v. Riley , 163 Pa. 65 ( 1894 )

Opinion by

Mb. Justice Mitchell,

It was bad practice and a hardship on defendant for plaintiff after bringing a second action and proceeding to trial and compulsory nonsuit, to go back to his first action by an-alias summons therein. The costs of the nonsuit not having been paid, the plea in abatement to the alias in the first action was a good plea of lis pendens, and the court might well have refused to take off the nonsuit, and abated the action on the alias. But that was á matter within its discretion, and the nonsuit having been taken off, and the suit discontinued, and costs paid, there was no error in overruling -the plea in abatement.

The issue of a new original instead of an alias in the first action was not equivalent to a discontinuance of the latter, as appellant argues. It could have no other force than of a second action begun while the first was pending. The real hardship to defendant is in treating a compulsory nonsuit under the statute after plaintiff’s evidence is all in, as an ordinary non-suit and not as a demurrer to evidence, which it really is, and which ought to be a bar to another action. But the practice in this respect is firmly settled: Bournonville v. Goodall, 10 Pa. 133.

• The question to the witness Keyser .had an apparent propriety as going to show his interest or bias in the case, and therefore his credibility. When it was sought to make the defendant responsible for the witness’s conduct the defendant’s objection was sustained. If, after this, any improper comment was made by counsel upon the testimony it was for the court below, not for us, to correct.

The third assignment of error is really the pinch of the case. The evidence of defendant’s negligence' was weak, but it could not be taken from the jury. One witness swore positively to facts which tended to show negligence, and however much he contradicted himself at the two trials, and however improbable his stoiy, his credibility was for the jury. The learned judge left it to them, with a pretty strong intimation of their duty to scrutinize it carefully. He would not have been justified in giving them a binding direction to disregard it.

Judgment affirmed.