Consolidated National Bank v. McManus

Citations

• 217 Pa. 190
• 66 A. 250
• 1907 Pa. LEXIS 683

Syllabus

<p>Practice, C. P. — Discontinuance—Leave to discontinue.</p> <p>A discontinuance in strict law must be by leave of the court, but it is the universal practice in Pennsylvania to assume such leave in the first instance.</p> <p>Causes which will move the court to withdraw its assumed leave and set aside the discontinuance are addressed to its discretion and usualjy involve some unjust disadvantage to the defendant or to some other interested party.</p> <p>The fact that a case is at issue on a plea of set-off, is not sufficient to prevent the plaintiff from taking a nonsuit; and without some other hardship, the samo rule applies to a discontinuance in actions at law. The practice in equity is somewhat stricter.</p> <p>Where a rule is taken by a defendant to strike off a discontinuance, and this rule is heard and discharged by the court, such action by the court is equivalent to a grant of leave to discontinue, and thereafter the court is under no obligation to reconsider the matter on a new and amplified application by the defendant. If the defendant failed to present his whole case at the hearing of the rule, as he was bound to do, the fault or misfortune was his own.</p>