res adjudicata doctrine in Pennsylvania

1963See, United States v. Southern Construction Co., 293 F. 2d 493 (6 Cir. 1961); Union Paving Company v. Downer Corporation, 276 F. 2d 468 (9th Cir. 1960); Lawhorn v. Atlantic Refining Company, 299 F. 2d 353 (5th Cir. 1962).

1963See, United States v. Southern Construction Co., 293 F. 2d 493 (6 Cir. 1961); Union Paving Company v. Downer Corporation, 276 F. 2d 468 (9th Cir. 1960); Lawhorn v. Atlantic Refining Company, 299 F. 2d 353 (5th Cir. 1962).

1955In Lorang v. Flathead Commercial Co., 119 P. 2d 273 it was decided by the Supreme Court of Montana that a suit upon a contract, unenforceable because of the absence of proof of a definite agreement as to the rate of compensation, did not bar a subsequent action for the reasonable value of the plaintiff’s services rendered under the doctrine of res adjudicata.

1954Plaintiffs contend that since no judgment was entered on the verdict, the doctrine of res adjudicata does not apply, citing the case of Grear v. Buholz, 66 Pa. Superior Ct. 380, at 382 , where it is stated: “It appears however that no judgment was ever entered on the verdict.

1951Plaintiff has security from the doctrine of res adjudicata: Orr v. Mercer County Mutual Fire Insurance Co., 114 Pa. 387 (1886); Amshel v. Hosenfeld, 20 Pa. Superior Ct. 369 (1902).

1951Plaintiff has security from the doctrine of res adjudicata: Orr v. Mercer County Mutual Fire Insurance Co., 114 Pa. 387 (1886); Amshel v. Hosenfeld, 20 Pa. Superior Ct. 369 (1902).

1950But the premise on which this reasoning is based has been destroyed by the recent decision of the Supreme Court in Simodejka v. Williams, 360 Pa. 332 , where it was held that an original defendant in a trespass action who brings in an additional defendant must litigate in that action his claim for damages against the additional defendant arising out of the same accident, or he will be thereafter barred from doing so in a separate action, by application of the doctrine of res adjudicata.

1948Rep. 192: ‘A plea of former suit pending must allege that the case is the same, the parties the same, and the rights asserted and the relief prayed for the same; and where the truth of the plea can be ascertained by an inspection of the record, the court will determine the question without a reference.’ This is but a concise summary of the weight of authority on the subject.” When a judgment is entered in a pending action, then the doctrine of res adjudicata will apply, and its requisites are thus stated: “To constitute res adjudicata there must be: (1) Identity in the thing sued for; (2) iden

1947Discussing the doctrine of res adjudicata, Judge Orlady stated in Raisig v. Graf, 17 Pa. Superior Ct. 509, 512 , as follows: “The rule extends to every question in the proceedings which was legally cognizable, and applies whenever a party has neglected the opportunity of trial, or has failed to present his cause or defense in whole or in part under the mistaken belief that the matter would remain open and could be made the subject of another proceeding: Schwan v. Kelly, 173 Pa. 65 .” There is yet a third factor which differentiates the instant case, to wit, laches on the part of defendant.

1947Discussing the doctrine of res adjudicata, Judge Orlady stated in Raisig v. Graf, 17 Pa. Superior Ct. 509, 512 , as follows: “The rule extends to every question in the proceedings which was legally cognizable, and applies whenever a party has neglected the opportunity of trial, or has failed to present his cause or defense in whole or in part under the mistaken belief that the matter would remain open and could be made the subject of another proceeding: Schwan v. Kelly, 173 Pa. 65 .” There is yet a third factor which differentiates the instant case, to wit, laches on the part of defendant.

1920The Act of 1855 requires a bequest for “charitable uses” shall be “attested by two credible and, at the time, disinterested witnesses.” Moore is alleged to have been so interested in the Odd Fellows’ Home, one of the seventeen remaindermen, as to disqualify him as a witness; but, to' begin with, it was decided in Sharp’s Est., 71 Pa. Superior Ct. 34, 36 , the Odd Fellows’ Home is not a charity, and this decision seems to be accepted by all parties in interest as the law of the present case, especially by appellant, who, on that theory alone, takes certain accumulations, which otherwise would g

1919See also Schwan v. Kelly, 178 Pa. 65 ; Jackson v. Thompson, 215 Pa. 209 .

1913When there is uncertainty as to what lands are included in the description, or there is a doubt as to the boundaries, or location, or limits of land sold, evidence aliunde may be resorted to for the purpose of aiding a jury to determine what land was intended to be included in the grant: Hoffman v. Danner, 14 Pa. 25 .