Brandmeier v. Pond Creek Coal Co.

Citations

• 229 Pa. 280
• 78 A. 273
• 1910 Pa. LEXIS 582

Syllabus

<p>Actions — Assumpsit ■ — ■ Trespass — Mesne profits — Damages—Ejectment.</p> <p>1. A plaintiff in ejectment who recovers a judgment against the defendant with whom he has no contractual relation, and ousts him from the premises, cannot maintain an action of assumpsit to recover from the defendant damages and mesne profits for the wrongful occupation of the land. His remedy is by trespass añd not by assumpsit.</p> <p>2. In such a case a trial cannot be deemed to have been had with the defendant’s consent, where the affidavit of defense raises in limine an objection to the form of action, and the first offer of the plaintiff’s, which was the record of the ejectment suit with the verdict and judgment thereon, followed by a habere facias, was promptly objected to as not being relevant to the issue joined under the pleadings.</p>