Fitzpatrick v. Riley
Fitzpatrick v. Riley
Opinion of the Court
Opinion by
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 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.
Reference
- Full Case Name
- Mary Fitzpatrick v. John B. Riley
- Cited By
- 15 cases
- Status
- Published
- Syllabus
- Practice—Pleading—Plea in abatement—Lis pendens. Plaintiff brought an action of trespass to recover damages for the death of her husband. The writ was returned nihil habet. A year after the cause of action had accrued she brought a second action. When the case was called for trial the court entered a nonsuit on the ground that the action was barred by the statute. She then issued an alias summons in the first action which was returned “ served.” Defendant filed a plea to the effect that the judgment in the second suit was conclusive upon plaintiff. Upon application of plaintiff the judgment of nonsuit in the second action was taken off, the costs paid, and the suit discontinued. The court then overruled the plea filed in the first suit. Held, (1) that the action of the court in taking off the nonsuit was a matter within its discretion; (2) that the issuing of a new original writ in a second action instead of an alias in the first action was not equivalent to a discontinuance of the first action; (3) that a compulsory nonsuit under the statute after plaintiffs evidence is all in, is not a bar to another action. It seems in such a case that as the costs of nonsuit had not been paid, the plea 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. Evidence—Bribing witness—Credibility. In an action of trespass it is not error to permit a witness for defendant to be asked whether he did not give money to a witness for plaintiff in consideration of his promise to go away and not testify. The question tended to show the witness’s interest or bias in the case, and therefore his credibility. Negligence—Question for jury—Master and servant. In an ac.tion by a widow to recover damages for the death of her husband, it appeared'that deceased was in defendant’s employ, and was killed while engaged in lowering a mast or derrick. Plaintiff’s principal witness testified that a slieave and iron pin fell from the mast as it was being lowered, and that the pin struck deceased; that he had seen the sheave and pin in the mast two weeks before the accident, and that they had not been properly fastened according to the usual manner of fastening such articles. Another witness for plaintiff also testified that he saw the pin strike the deceased. Defendant’s witnesses testified that there was no sheave or pin in the mast at the time of the accident, but that they had been placed there four months after the accident. Held, that the case was for the jury.