Felpel v. Hershour

18 A. 419, 128 Pa. 587, 1889 Pa. LEXIS 820

• Court: Pennsylvania Court of Common Pleas, Lancaster County
• Decided: October 7, 1889
• Docket: No. 46
• Status: Published

Opinion

Opinion,

Mb. Justice Clabic:

This suit was brought before an alderman to recover $49.65, being for wages of manual labor performed in the years 1887 and 1888. The defendant did not appear, but after judgment entered an appeal in the Common Pleas. At the trial, the defendant moved for a compulsory nonsuit, upon the ground that a previous action had been brought by the defendant in this suit, against the present plaintiff before another alderman, for a claim of damages amounting to $50, arising out of the same transaction and ex contractu, which action was still pending and undetermined, and that the claim now in suit, must be set off in that action, under the act of 1810. A nonsuit was entered, and upon a rule to show cause the court refused to take it off; this is the error assigned.

In actions brought to recover for the services of manual labor, certain special provisions have from time to time been made by statute, for sure and speedy collection; and the wages of labor have been accorded a species of protection which has not been extended to any other kind of claim. For examples, when judgment is rendered for the wages of' manual labor, the defendant is entitled to an appeal only .upon entering bail to secure the debt, interest, and costs: Act of April 20, 1876, P. L. 43; no stay of execution is allowed: Act of May 14, 1874, P. L. 145; nor exemption of property from attachment, levy, and sale, where the amount does not exceed $100: Act of March 4, 1887, P. L. 4; suits therefor are preferred on the trial list: Act of March 22, 1877, P. L. 13; and labor claims have preference over claims for rent: Act of June 12,1878, P. L. 207. The plaintiff’s argument is, that if labor claimants are obliged to set off their claims under the act of 1810, they may be deprived of some of the protection to which by law they are thus entitled, and generally, that the provisions of the act of 1810 are inconsistent with the purpose of the later provisions mentioned.

We cannot see any ground for this contention. The act of 1810, which is older than any of the special statutes referred to, certainly embraced a set-off for the wages of manual labor at the time of its passage; it has certainly been so understood ever since, and there is no statute which in terms in this respect abridges its effect. The act of 1810 is in no sense inconsistent with any of the provisions mentioned. It is urged that the act of April 20, 1876, P. L. 48, requiring bail for debt, interest, and costs on an appeal, applies only when the defendant appeals; and that if the wage-claimant is himself the defendant in the suit, and is bound to set off his claim of wages, the plaintiff may appeal without giving bail under that act, and then by a mere trick of an unscrupulous debtor, the labor claimant may be deprived of the security it was the plain purpose of the law to provide. But the difficulty is more apparent than real. A claim of set-off is in the nature of a cross action, and when judgment is entered upon it in the defendant’s favor, the relation of the parties is changed; the plaintiff in the suit becomes defendant in the judgment, and that changed relation continues until an appeal is entered, when the case proceeds in the Common Pleas de novo. It follows that the bail for an appeal, even in such a ease, must be according to the requirements of the act of April 20, 1876.

. The plea as to pendency of the suit is not in the nature of a plea in abatement. It is essentially a plea in bar of the action; for the act of 1810 expressly provides that if the defendant “ shall neglect or refuse to set off his demand,” etc., he “ shall be and is hereby forever debarred from recovering against the party plaintiff by any other suit.”

Upon an examination of the whole case, we are satisfied the nonsuit was properly entered.

The judgment is affirmed.