Meenen v. Negley

• Decision Date: 12 July 1928
• Docket Number: 35-1928
• Citation: 93 Pa.Super. 591
• Parties: Meenen v. Negley, Appellant
• Court: Pennsylvania Superior Court

93 Pa.Super. 591

Meenen v. Negley, Appellant

No. 35-1928

Superior Court of Pennsylvania

July 12, 1928

Argued April 25, 1928

Appeal by defendant from judgment of C. P., Allegheny County, No 1799-1923, in the case of James E. Meenen v. W. G. Negley.

Action of assumpsit to recover money in the hands of an agent. Before MacFarlane, J.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff in the sum of $ 1,011.27 and judgment thereon. Defendant appealed.

Error assigned was the refusal of defendant's motion for judgment non obstante veredicto.

T. M Gealey, for appellant. -- A final decree in equity unappealed from renders the cause of action res judicata Baker v Hartman, 30 Lanc. 265; Nissley v. Drace, 242 Pa. 105; Bank of Pittsburgh v. Purcell, 286 Pa. 114; Beaver v. Slane, 271 Pa. 317.

Charles P. Lang, for appellee.

Before Porter, P. J., Henderson, Trexler, Keller, Linn, Gawthrop and Cunningham, JJ.

OPINION

KELLER, J.

This is a complicated record. Appellant states in his history of the case that " the parties have agreed upon a statement of the facts of the case under Superior Court Rule 56 and that statement is printed as part of the record in this case." No such statement is contained in the record before us. The parties only agreed, in accordance with section 5 of the Act of May 11, 1911, P. L. 279, on what testimony should be included in the printed record, as relevant to the questions involved and to be argued in this appeal.

Appellant states four questions are involved:

1. Whether a pending equity suit, which has reached a final decree, unappealed from and unexcepted to, precludes a subsequent suit at law on the same cause of action?

2. Is the cause of action in the subsequent suit at law res judicata?

3. Was there a fatal variance between the allegata and probata in the action at law?

4. Was the cause of action cognizable exclusively in equity?

We shall take them up in order, considering the first and second together.

1 and 2. As stated by the appellant these questions are hardly debatable; but a review of the record shows that they are too broadly stated. On June 21, 1919, the plaintiff filed a bill in equity against the defendant, setting up, as ground for suit, practically the same facts declared on in the present action. The defendant filed an answer on the merits, raising no objection to the jurisdiction in equity. After a hearing the court, on November 3, 1920, filed an opinion holding that equity had no jurisdiction of the subject matter, and that plaintiff's remedy was by action at law; that if counsel for plaintiff so desired the case would be certified to the law side of the court; otherwise a decree dismissing the bill would be entered. A decree nisi was entered in accordance with said opinion, and on December 8, 1920, the cause was ordered certified to the law side of the court for a jury trial. It will be noted that the court did not dispose of the case on the merits, but held it was not cognizable in equity. If a final decree dismissing the bill had been entered pursuant to the opinion, it would not have been an adjudication on the merits and would not have barred a subsequent action at law on the same cause of action. This disposes of the contention of " res judicata." On February 15, 1921, the present appellant moved the court to revoke and rescind its order certifying the case to the law side of the court on the ground that as no question of jurisdiction had been raised pursuant to the Act of June 7, 1907, P. L. 440, the same had been waived and the court should have proceeded to a final determination of the case; and on November 23, 1921, the court rescinded the order as inadvertently made and ordered that " the case be reinstated for further hearing, if desired by the parties, and for findings of fact and conclusions of law under the first section of the Act of 1907." From this order the defendant and present appellant took an appeal to the Supreme Court (276 Pa. 5), which in a per curiam opinion held that all the above-recited orders and decrees were interlocutory and unappealable, and quashed the appeal.

On February 14, 1923, on petition of the plaintiff, (appellee here), the court granted a rule on defendant (this appellant) " to show cause why plaintiff should not be permitted to discontinue the suit in equity without prejudice to his rights at law in the premises" ; and pursuant thereto the following order was made " And now, March 3, 1923, this matter came on to be heard on petition filed by plaintiff. After hearing, the court does hereby order and decree that the case be discontinued as prayed for." The plaintiff, apparently considered this to have effected a discontinuance, and without paying the costs incurred in the equity suit and entering a formal discontinuance therein, brought this action at law. Defendant, thereupon, in his affidavit of defense, objected to proceeding with the action at law while the suit in equity was still pending and to any removal of the cause of action from equity to law, the plaintiff having elected to proceed in equity and the defendant having consented thereto. Notwithstanding, the action proceeded to trial and resulted in a verdict for the plaintiff, whereupon the defendant by motion for judgment non obstante veredicto again raised, inter alia, the question of the pendency of the equity proceedings; and on May 7, 1926 the court made the following order in the equity suit: " It appearing that plaintiff has not discontinued and has not paid costs, it is ordered that the prothonotary shall not receive and enter a discontinuance until further order of the court." On May 21, 1926 after argument of the motions for new trial and judgment non obstante veredicto the court filed an opinion concluding: " We will not make any disposition of these motions until defendant has an opportunity to move in the equity case to vacate the order allowing a discontinuance." In January, 1927, the plaintiff presented a petition in the equity proceeding asking the court to cancel or rescind its order of May 7, 1926; and on April 11, 1927 the said order was revoked conditioned on payment of the costs by the plaintiff; and discontinuance of the equity suit was permitted on payment of costs. And on April 12, 1927 the suit in equity was discontinued after payment of costs. This was done pursuant to an opinion filed by the court in the present action, setting forth that the defendant had not moved to vacate the order allowing the equity suit to be discontinued until after plaintiff had presented his petition to revoke the order of May 7, 1926, and had " been guilty of gross laches." The court subsequently refused the defendant's motions for new trial and for judgment non obstante veredicto and directed judgment to be entered on the verdict. During the pendency of these proceedings both the trial judge in...