Catanzaritti v. Bianco, 1338.
| Decision Date | 28 November 1938 |
| Docket Number | No. 1338.,1338. |
| Citation | 25 F. Supp. 457 |
| Parties | CATANZARITTI et al. v. BIANCO. |
| Court | U.S. District Court — Western District of Pennsylvania |
Ellsworth S. Keller, of Tunkhannock, Pa., and Gerald G. Dolphin and Robert E. Dolphin, both of Scranton, Pa., for plaintiffs.
Thomas F. Hanahue and R. L. Levy, both of Scranton, Pa., for defendant.
This case is before the Court upon Defendant's motion to dismiss the action for the reasons that the Plaintiffs have a complete and adequate remedy at law, and that the amount in controversy is less than $3,000.
Although this action was begun as a suit in equity before the Rules of Civil Procedure were in effect, it must now be viewed as a civil action in which the Plaintiffs ask for remedies formerly obtainable only in a court of equity. Federal Rule 86, 28 U.S.C.A. following section 723c, provides that the Rules of Civil Procedure shall apply to all pending actions unless their applicability should not be possible or should work injustice. There is nothing in the present case which would bring it within the exceptions. There being no distinction under the present practice between actions at law and suits in equity, the question whether this action should have been brought originally at law no longer requires consideration. So also the question whether the Plaintiffs ask for the remedies to which they are entitled require no consideration. Federal Rule 54 (c), 28 U.S.C.A. following section 723c, provides that except as to default judgments, the Court shall grant the relief to which a party is entitled even if the party has not demanded such relief in his pleadings. The question is not whether the Plaintiff has asked for the proper remedy but whether under his pleadings he is entitled to any remedy.
Plaintiffs' pleading discloses that they are proceeding on two entirely different theories and the allegations in support of each are so interspersed as to make analysis virtually impossible. Certain of the allegations, if established, might support an action in the nature of ejectment for land owned by the Plaintiffs by virtue of a devise to them by their deceased guardian and wrongfully possessed by the Defendant. On the other hand, other allegations, if established, might support an action to impress property, belonging to the Defendant, with a trust in favor of the Plaintiffs by reason of the use of their money by the devisor, their deceased guardian in purchasing the property.
Under the present practice there is no...
To continue reading
Request your trial
-
Woody v. Sterling Aluminum Products, Inc.
..."and/or"s. The second amended complaint wholly fails to "comply with the fundamental principles of good pleading." Cf. Catanzaritti v. Bianco, D.C.Pa., 25 F. Supp. 457; Collier v. First Michigan Cooperative Housing Association, 6th Cir., 274 F.2d 467, and Kappus v. Western Hills Oil, Inc., ......
-
Richardson v. Communications Workers of America
...allegations or theories were so intermingled that the court was unable to determine what the plaintiff was alleging. Catanzaritti v. Bianco, 25 F.Supp. 457 (M.D.Pa.1938); see generally 2A J. Moore, Federal Practice, ¶ 8.33, at 1893 (1968 ed.). Nevertheless, though Summit's amended complaint......
-
PETER KIEWIT SONS'CO. v. Summit Construction Co.
...allegations or theories were so intermingled that the court was unable to determine what the plaintiff was alleging. Catanzaritti v. Bianco, 25 F.Supp. 457 (M.D.Pa.1938); see generally 2A J. Moore, Federal Practice, k 8.33, at 1893 (1968 ed.). Nevertheless, though Summit's amended complaint......
-
Ivey v. Housing Foundation of America
...& C. R. Co. v. Alton R. Co., 7 Cir., 1941, 124 F.2d 780; Atwater v. North American Coal Corp., D.C., 36 F.Supp. 975; Catanzaritti v. Bianco, D.C.M.D.Pa., 25 F.Supp. 457. 3 See Power v. Grogan, 232 Pa. 387, at page 394, 81 A. 4 See Blum Bros. v. Girard Nat. Bank, 1915, 248 Pa. 148, at page 1......