Beckett v. Stone

36 A. 880, 60 N.J.L. 23, 31 Vroom 23, 1897 N.J. Sup. Ct. LEXIS 136

• Court: Supreme Court of New Jersey
• Decided: February 15, 1897
• Status: Published

Opinion

The opinion of the court was delivered by

Van Syckel, J.

The defendant pleaded, in bar of the plaintiff’s action, a judgment of nonsuit in the former trial of the same cause, between the same parties, which nonsuit, the plea alleges, was ordered by the trial judge after the plaintiff’s witnesses were sworn and his case rested.

To this plea the plaintiff has demurred.

In case of an involuntary nonsuit the judgment is a final judgment, so far as to be a basis for a writ of error. Voorhees v. Woodhull’s Executors, 4 Vroom 482, 486. But as long ago as 1827, Chief Justice Ewing held that a judgment of non-suit in a former action between the same parties is no bar to a subsequent action by the same plaintiff against the same defendant for the same cause of action. Snowhill v. Hillyer, 4 Halst. 38.

Since that time it has always been held that a nonsuit, unreversed, is not an obstacle to a new suit between the same parties for the same cause of action. Longstreet v. Phile, 10 Vroom 63.

The plea is bad, and there must be judgment for the plaintiff upon the demurrer, with costs.