Haviland v. Fidelity Ins., Trust & Safe Deposit Co.

• Decision Date: 02 February 1885
• Citation: 108 Pa. 236
• Parties: Haviland v. Fidelity Insurance, Trust and Safe Deposit Company, Executor, & c.
• Court: Pennsylvania Supreme Court

108 Pa. 236

Haviland v. Fidelity Insurance, Trust and Safe Deposit Company, Executor, & c.

Supreme Court of Pennsylvania.

February 2, 1885

January 5, 1885

1. A claimant who has presented several separate and distinct claims against a decedent's estate, upon the audit of the executor's account, in the Orphans' Court, may before adjudication thereon, withdraw one or more of such distinct claims, without prejudice to his right to sue therefore in another forum, and that without leave of the court, and against the objection of the accountant.

2. In a common law action against an executor, the defendant pleaded specially in bar that the claim in suit had been previously presented by plaintiff in a proceeding for distribution in the Orphans' Court, upon the audit of the executor's account, and had been by said court finally adjudicated; and the plaintiff replied by a special traverse, setting out by way of inducement that he had withdrawn said claim from the consideration of the auditing judge before any adjudication thereof, and traversing, absque hoc, the allegation in the plea that the claim in suit had been adjudicated in the Orphans' Court; and on demurrer to the replication the court below entered judgment for the defendant. Held, to be error.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT and GREEN JJ.

CLARK J., absent.

ERROR to the Court of Common Pleas No. 1, of Philadelphia county: Of January Term, 1884, No. 193.

Assumpsit by James Haviland against the Fidelity Insurance, Trust and Safe Deposit Company, executor of the will of Lucas Hirst, deceased. The narr. consisted of the common counts. The bill of particulars of plaintiff's claim consisted of a statement of items for salary and commissions on collections of rent and interest, for which it was alleged the testator was indebted to plaintiff.

Pleas, non assumpsit; non assumpsit testator; non assumpsit infra sex annos; set-off; payment with leave, & c., and a special plea that upon the adjudication of the account of defendant as executor of said testator in the Orphans' Court of Philadelphia county, the plaintiff presented the same claim and demands sued for in this suit, and the same were adjudicated upon and rejected by the auditing judge in his adjudication filed, to which adjudication the plaintiff filed no exceptions, and said adjudication was confirmed absolutely by the decree of said court, which decree " now stands as the judgment of said court upon the said claims and demands of the said plaintiff, and is unreversed, whereby the said plaintiff is barred from recovering upon said claims and demands in this suit, and this the said defendants are ready to verify, wherefore they pray judgment," & c.

In the body of said special plea was recited and set forth in hæ c verba the said adjudication of the auditing judge upon the plaintiff's claims, by which it appeared that at the audit the plaintiff had presented three separate items of claim, to wit: (1) A claim for a sum loaned by plaintiff to testator with interest thereon. (2) A claim for special services rendered to the executors immediately following the death of testator. (3) A claim for services rendered to the testator in his lifetime, being the same claim now sued for. It further appeared from said adjudication that pending said audit, and before adjudication upon said claims, the plaintiff presented to the auditing judge a paper re-stating the first two items of his claim, as above, omitting the third item, and stating that the " further claim for services rendered deceased in his lifetime is now withdrawn, without prejudice to claimant's right to proceed elsewhere." The accountants objected to such withdrawal. The adjudication upon this point was as follows:

" It is very certain that the withdrawal cannot be without prejudice, for the distribution awarded by the adjudication will cut out all claims not now presented so far as the fund distributed is concerned (Hammett's Appeal, 2 Norris 392.) Whether a claimant who voluntarily permits the personal estate, the primary fund for the payment of debts, to be distributed can afterwards proceed against the real estate--the surety, so to speak, is perhaps a question (see Hanna's Appeal, 7 Casey 53.) The real estate is only liable in case of a deficiency of assets, and the creditor ought not to be permitted to let the personal estate go to the legatees to the prejudice of the heir or devisee.

Whether a claim once presented in the Orphans' Court can be there abandoned or withdrawn so as to permit its renewal in another court at such time as the creditor may think fit to present it, is a question which will perhaps more properly arise when the attempt is made to do so, but subject to this question and with such right on the part of the claimant as he may have by reason of his withdrawal, or attempted withdrawal of his claim, the claim for services to the decedent in his lifetime is disallowed."

The other two items of plaintiff's claim were allowed by the adjudication.

To the above special plea the plaintiff filed the following replication:

And the plaintiff as to the plea of the defendant last above pleaded, saith that the claim, demand and cause of action for which this suit has been brought by this plaintiff, was withdrawn by him from the consideration of the said auditing judge of the said Orphans' Court of the county of Philadelphia, sitting to audit the account of the defendant as executor on the occasion referred to in said plea, before any determination, decision, or judgment was rendered therefor by said auditing judge; without this, that by the judgment of the said Orphans' Court for the county of Philadelphia, the said claim and demand of the plaintiff for which this suit is brought, hath been adjudicated upon and rejected in the manner and form as in said plea alleged, and this he is ready to verify.

The defendant demurred to the replication, on the grounds (1) That the said replication is not responsive to said plea, and does not answer the same, or put in issue any fact therein alleged. (2) That the said replication is indirect and argumentative, and attempts to traverse a conclusion of law from the facts set out in the said plea. (3) That the said replication sets forth in the inducement thereof no new affirmative matter which is thereby put in issue. (4) That the said replication is, in other respects, uncertain and insufficient. Wherefore the defendant prays judgment, and that the said plaintiff may be barred from having or maintaining his aforesaid action, & c.

The court entered judgment for the defendant on the demurrer, whereupon the plaintiff took this writ of error, assigning for error the said judgment, and the not entering judgment for the plaintiff on the whole record.

Rowland Evans and R. L. Ashhurst, for plaintiff in error.--On demurrer the court will consider the whole record, and give judgment for the party who on the whole appears to be entitled to it: Stephen on Pleading *144. The defendant's plea is bad, because it violates the rule which forbids prolixity and surplusage in pleading. It refers to the record by way of recital. It is argumentative, reciting a portion of the record and then a conclusion therefrom. It is repugnant, ambiguous, and doubtful, the former part of the plea stating that the claim was adjudicated, the latter part, the record, that it was withdrawn. The whole record in the Orphans' Court should have been pleaded at length, or only its legal effect: Stephen on Pleading *378, 384, 388, 389, 423. If the plea is good we certainly had a right to traverse its allegations. The replication is good, for the record set forth in the plea can be explained, if necessary, by outside testimony: Croft v. Steele, 6 Watts 373; Carmony v. Hoober, 5 Barr 309; Converse v. Colton, 13 Wright 352; Aiken v. Stewart, 4 W. N. C. 181. The replication meets all the requirements of good pleading. The inducement contains new matter absolutely inconsistent with the allegations of the plea, so it could not be set up by way of confession and avoidance. It is affirmative matter and does not in itself form an issue, therefore it must conclude with a traverse and verification: Gould on Pleading, ch. 7, §§ 6, 14, 32, 64. The question presented by the demurrer was not whether the claim had been adjudicated and rejected by the Orphans' Court, but whether we could traverse that allegation by showing that it had been withdrawn from the consideration of the Orphans' Court.

A nonsuit is a matter of right. No leave of the court is necessary: Evans v. Clover, 1 Grant 164; Easton Bank v. Coryell, 9 W. & S. 153; McCredy v. Fey, 7 Watts 498. In equity cases the rule is the same Daniel's Ch. Pr. 768; Curtis v. Lloyd, 4 M. & C. 194. It is well settled that a plaintiff who has included several distinct claims in one suit, may withdraw any one of them at any moment prior to verdict or judgment, and afterwards maintain a second suit upon the claim so withdrawn. And where the withdrawal does not appear of record it may be shown by testimony dehors the record: Chitty on Pleading, vol. 1, p. 603; Daniel's Ch. Pr. 799; Cooper v. Tiffin, 3 T. R. 511; Hess v. Heeble, 6 S. & R. 57; Killion v. Wright, 10 Casey 91; Steelman v. Sites's Exe'rs, 11 Id. 216; Chase v. The Bank, 6 Smith 355; Thomson's Estate, 5 W. N. C. 14; Sulzbach v. Thomson's Administrators, 41 Leg. Int. 75; Cummins v. Bennett, 8 Paige 79; Saylor's Appeal, 3 Wright 498; Coyle's Estate, 41 Leg. Int. 134. In equity cases the plaintiff may in general move to dismiss his own bill with costs, as a matter of course, at any time before final decree: Daniel's Ch. Pr. 768. This may be done even after the case has been called for hearing and has stood over at request of counse...