Sauber v. Nouskajian

• Decision Date: 26 May 1926
• Docket Number: 196
• Citation: 133 A. 642,286 Pa. 449
• Parties: Sauber, Appellant, v. Nouskajian et ux
• Court: Pennsylvania Supreme Court

133 A. 642

286 Pa. 449

Sauber, Appellant, v. Nouskajian et ux

No. 196

Supreme Court of Pennsylvania

May 26, 1926

Argued April 22, 1926

Appeal, No. 196, Jan. T., 1926, by plaintiff, from decree of C.P. No. 1, Phila. Co., Sept. T., 1925, No. 7941, dismissing bill in equity, in case of Charles Sauber v. Karekin A Nouskajian et ux. Reversed.

Bill for reconveyance of real estate. Before BARTLETT, P.J.

The opinion of the Supreme Court states the facts.

Bill dismissed. Plaintiff appealed.

Error assigned was, inter alia, dismissal of bill, quoting record.

The order enjoining the sheriff's sale and the decree dismissing the bill are both reversed at cost of appellee.

M. A Granatoor, of Granatoor & Swotes, for appellant. -- The decision is not in accordance with law or res judicata: Steel v. Levy, 282 Pa. 338; Rhodes v. Terheyden, 272 Pa. 397; Hartman v. Inclined Plane Co., 23 Pa.Super. 360; Singer v. Pilton, 282 Pa. 243.

The decision is contrary to Equity Rule 66.

Nonsuit is no bar to a second action: Moreland Twp. v. Gordner, 109 Pa. 116; Detrick v. Sharrar, 95 Pa. 521; Vought v. Sober, 73 Pa. 49; Haws v. Tiernan, 53 Pa. 192; Gardner v. R.R., 150 U.S. 349; Bournonville v. Goodall, 10 Pa. 133.

Dismissal of a bill without prejudice is no bar to a second action: New York, etc., Land Co. v. Weidner, 169 Pa. 359.

Joseph L. McAleer, for appellee. -- On the question as to the record of the former suit not having been set up in the pleadings, this court has held that it will not reverse where no harm has resulted from apparent error of the court in treating the prior record as it had: Kleck v. Gernert, 220 Pa. 503, 506.

The matter was res judicata: State Hospital v. Water Supply Co., 267 Pa. 29; Loyal Orange Institution v. Morrison, 269 Pa. 564.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. CHIEF JUSTICE MOSCHZISKER:

Plaintiff filed a bill in equity, averring that he was a creditor of one of two defendants: that this defendant had conveyed, through a strawman, real estate possessed by him to the other defendant, his wife, for the purpose of defrauding his creditors. The bill prayed that the wife be decreed to hold the property in trust for plaintiff to the extent of his claim, that a trustee be appointed, and that defendants be restrained from encumbering or disposing of the premises.

When the case came to hearing on pleadings and proof, the court below, at the end of plaintiff's testimony, dismissed the bill for want of required evidence, in accordance with Equity Rule 66. No exceptions were taken to this action, but plaintiff subsequently filed another bill in the same court, with averments like those in the first bill and praying that the deed from husband to wife be set aside, defendants restrained from disposing of the property in question, and decreed to hold the income therefrom in trust for the benefit of plaintiff until the suit should be determined.

Mrs. Nouskajian, referred to above as the "wife," answered this second bill, saying that it raised "the same questions of fact and law [as contained in the former bill, and therefore] the whole controversy [was] res adjudicata."

The record contains no stenographic report of what occurred when the second bill came before the court below, but two opinions filed by that tribunal indicate, first, that the only evidence offered was to contradict testimony given at the hearing on the original bill, and, next, that the testimony offered was "identical with that given at the former trial, with the exception of a witness called at that trial who desired to change his testimony as to values." These two statements may appear inconsistent, and both of them are at variance with the statement of counsel for appellant as to the tenders of proof; but whatever the facts may be in this regard, the court plainly said, in disposing of the second bill, that it was dismissed because "it contains no new facts and no new issue," and because "the matter having been [previously] disposed of by the court [was] res judicata." This state of affairs shows the necessity for making a proper official record of all court proceedings. Our jurisprudence contemplates both trial and review; the latter requires a record, the making of which has been rendered comparatively easy in Pennsylvania by our court-stenographer legislation, and this should be taken advantage of in cases such as the one now before us. In the absence of a proper record, we, of course, accept the statement of facts made by the court below; but where a bill is dismissed there should be a formal record to show warrant for the court's action. Here neither testimony nor offer of testimony, on the second bill, are shown, and it is quite impossible to know whether the controlling rules have been complied with.

Equity Rule 66 provides: "If the judge . . . upon the close of plaintiff's evidence shall be of opinion that the case made in the bill has not been sustained, he shall have power, without hearing evidence on behalf of defendant, to enter a decree of dismissal which shall have the effect of a nonsuit at law. If exceptions are filed to it, however, and the court . . . refuses to change it, it shall become a final decree for all purposes, and subject to appeal as such exactly as if it had been entered after a hearing of both parties."

Since the original bill was dismissed under circumstances such as stated in the first sentence of the above rule, and no exceptions were filed to the decree of dismissal, the action of the court below had the effect only of a nonsuit at common law; hence it did not make the issues in any sense res judicata or prevent the filing of another bill (Cleary v. Quaker City Cab Co., 285 Pa. 241, 249), and it was error to dismiss the second bill on the ground of res judicata. More than this, the court also erred in treating the case as though defendant had proved all facts necessary to show that the issues involved had already been adjudicated. If the court was convinced from informal offers of proof that the doctrine of res judicata applied, it should have asked for formal tenders of evidence, including the record of the first bill, so as to establish the fact and scope of the prior adjudication; the fact that the record happened to be in the same court would not alter the rule in this respect: Steel v. Levy, 282 Pa. 338, 341, 342. Finally, if the answer was intended as in the nature of a demurrer under Equity Rules 48 and 49, the bill could not be dismissed except in accordance with Rule 49, which was not followed in this case: Gray v. Phila. & Reading C. & I. Co., 286 Pa. 11. These mistakes of law and departures from correct practice require a reversal; but there is another matter, not yet touched on, which calls for discussion.

We have repeatedly held that the established way to test the question of whether real property has been conveyed in fraud of creditors is for one claiming to be a creditor to obtain a judgment and issue execution against the premises in question as the property of his debtor, this to be followed by an ejectment at the suit of the purchaser at sheriff's sale Hyde v. Baker, 212 Pa. 224, 226; Mantz v. Kistler, 221 Pa. 142, 144; Kemmler v. McGovern, 238 Pa. 460, 461; Handel, etc., B. & L. Assn. v. Elleford, 258 Pa. 143, 147; Am. Trust Co. v. Kaufman, 276 Pa. 35, 40; ...