S. F. Bowser & Co. v. Sharping.

Opinion by

Head, J.,

The appellant began this action before the justice of the peace by filing the affidavit of claim provided for in sec. 2 of the Act of July 7, 1879, P. L. 194. The affidavit was duly served with the summons. The defendant in turn filed within the proper time the affidavit of defense provided for in the same section. As that act confers upon the magistrate no power to enter a judgment for want of a sufficient affidavit of defense, and does not attempt to make either of these ex parte affidavits evidence to be considered by the' magistrate, it had no further effect or significance in the case. The further procedure, the rights and obligations of the parties, and the powers and duties of the magistrate are regulated by the act of 1810.

• The plaintiff then remained the actor, and when the time fixed for a hearing had arrived the following portion of sec. 6 of the act of 1810 became operative: “And in case the plaintiff does not appear, either in person or by agent, to substantiate his charge, the justice may then proceed to give judgment against him by nonsuit for the costs,” etc. From such a judgment there would of course be no appeal because the plaintiff would have the right to begin another action.

At the hour fixed for the hearing the counsel representing the plaintiff presented himself at the office of the magistrate. He demanded no hearing, he presented no witness, he offered no evidence, he did nothing to substantiate the plaintiff’s *363charge, unless his physical presence there can be taken to be such a compliance with the obligation of the act as would prevent the entry of a judgment of nonsuit. With matters in this state the magistrate, after consideration, entered a judgment, the substance of which is declared in the following language taken from his transcript, viz.: “Inasmuch as no evidence has been offered by the plaintiffs to support their case and cause of action, the same is hereby dismissed and a judgment of no cause of action is hereby entered.”

The plaintiff then took an appeal from this judgment to the court of common pleas. A motion was made to strike off the appeal. After argument the court reached the conclusion that the judgment entered by the magistrate was in substance, if not in form, but a judgment of nonsuit, and that the plaintiff’s remedy was not by appeal but by bringing another action.

In this view the majority of the judges of this court concur. The opinion filed by the learned court below carefully considers the language of the statute, reviews and analyzes all of the decisions of the Supreme Court which are cited in the briefs of counsel, or that we have been able to discover that affect the question, and as we think so well vindicates the conclusion he reached, that no good purpose could be subserved by any attempt on our part to further elaborate his reasoning. The judgment is therefore affirmed on that opinion, which the reporter will print as part of the report of the case.

Judgment affirmed.