Kesselman v. Chrystal

This case is an appeal from a judgment of a Justice of the Peace. The defendant moves to dismiss the appeal.

The case was instituted by the plaintiff before a Justice of the Peace, and proceeded in the usual way. The case was set for trial by the justice on.

The plaintiff did not produce any testimony, and there was a “judgment of non pros.”

The plaintiff then appealed. It is now contended by- the defendant, that no appeal lies from such a judgment.

No appeal lies where the plaintiff offers no testimony. 2 Ency. of Law, 106.

It is contended that, in appeals from Justice of the Peace, the case is heard de novo.

Code, Article 5, Section 86, and that this section authorizes an appeal from judgments of non pros.

This section of the Code provides: “Any party aggrieved thereby may appeal from any judgment of a Justice of the Peace.” A party who abandons his case is not aggrieved by the action of the justice. It is by the plaintiff’s own act, that the judgment below is against him. No other judgment than a non pros, is possible where the plaintiff -produces no evidence. The controversy is not res judicata. The plaintiff may sue again, but must do so before a Justice of the Peace. No appeal lies from the judgment of the Justice of the Peace in this case, and the motion to dismiss will be granted.