Pennsylvania R. R. v. Davenport

25 A. 890, 154 Pa. 111, 1893 Pa. LEXIS 851

Opinion

Per Curiam,

We think the affidavit of defence in this case was sufficient. It set forth that the appellant company had used the identical claim on which this suit was brought as a set-off in an affidavit of defence in another proceeding between the same parties, in which the Pennsylvania Railroad Company, appellant, is defendant, and the said J. Davenport is plaintiff, in the court of common pleas No. 2, No. 157 of June Term, 1892.

The plaintiff has thus two suits pending for the same cause of action, to wit: the present, which is a direct suit, and a set-off in the action in the court of common pleas, No. 2, which is a cross suit. It cannot have two suits pending at the same time for the same cause of action. It might perhaps have withdrawn its affidavit in common pleas No. 2, in which case the way would have been clear to have commenced this action in common pleas No. 8; but it cannot have both at the same time. We think the court below was justified in refusing to enter judgment for want of a sufficient affidavit of defence.

Affirmed.