Sherwood Brothers Company v. Kennedy

• Decision Date: 15 July 1938
• Docket Number: 224-1938
• Citation: 200 A. 689,132 Pa.Super. 154
• Parties: Sherwood Brothers Company, Appellant, v. Kennedy
• Court: Pennsylvania Superior Court

200 A. 689

132 Pa.Super. 154

Sherwood Brothers Company, Appellant, v. Kennedy

No. 224-1938

Superior Court of Pennsylvania

July 15, 1938

Argued April 21, 1938

Appeal from decree of C. P. Beaver Co., Sept. T., 1937, No. 3, in equity, in case of Sherwood Brothers Company v. R. M Kennedy.

Bill in equity.

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

Order entered sustaining preliminary objection to bill, and retaining bill, before Reader, P. J. and Wilson, J., opinion by Reader, P. J. Plaintiff appealed.

Error assigned was decree.

Decree reversed.

Robert E. Anderson, with him George A. Baldwin, Jr., for appellant.

Thompson Bradshaw, of Bradshaw, McCreary & Reed, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker and Rhodes, JJ.

OPINION

Keller, P. J.

The point really in dispute in this case is whether the defendant in a judgment confessed by warrant of attorney may file a bill in equity to restrain the enforcement of the judgment and the issuing of execution thereon because of fraud in its procurement, or other equitable grounds, or must proceed by petition to open the judgment. The court below took the latter view. We are of opinion that it has misconceived the relevant decisions, and that the plaintiff may elect to proceed by bill.

It must not be forgotten that a petition to open a judgment is essentially an equitable proceeding, and the opening of the judgment an exercise of equity powers: Fisher v. King, 153 Pa. 3, 25 A. 1029; Pfaff v. Thomas, 3 Pa.Super. 419, 421, 422. It was "invented in the absence of a court of chancery, as a substitute for a bill in equity to enjoin proceedings at law . . . . The grounds upon which the rule is founded are, of course, as varied as those of bills in equity, and, as in equity, each case must stand upon its own peculiar merits": Mitchell on Motions and Rules, pp. 76, 77, Edition of 1879. The history of rules to open judgments, as an exercise of chancery powers, before a court of equity had been established in Pennsylvania, was set forth at length by Chief Justice Woodward in Cochran v. Eldridge, 49 Pa. 365. Even after courts of equity were established in Pennsylvania, the rule to open judgment was continued to be used because of its convenience and simplicity; but, thereafter, it was optional with the defendant whether to proceed by bill in equity or by petition to open. For years there was some conflict in the decisions as to whether the defendant in the judgment could file a bill in equity after he had applied, without success, to open the judgment; but the right to proceed by bill, instead of by petition to open, was never questioned. Thus in Gravenstine's App., 49 Pa. 310, (1865) which was decided at the same term with Cochran v. Eldridge, supra, Gravenstine appealed from a decree in equity awarding, at the suit of one Evans, a perpetual injunction against the collection of a judgment which Gravenstine had secured against The Philadelphia Coal Oil Co. The Supreme Court (Thompson, J.) held (p. 320) that as the plaintiff in the court below had applied to the District Court, ^[1] where the judgment was entered, to open the judgment and it had refused to interfere, he ought to be concluded by that order; but, nevertheless, said: "As, however, it may be more satisfactory to all parties, to treat this appeal on the merits of the bill, answer and proofs, I waive the point and proceed to view it in this aspect"; and on consideration of the merits, the decree was reversed and the bill dismissed.

This was followed by Wistar v. McManes, 54 Pa. 318, (1867) (Strong, J.), a bill in equity for relief against a judgment and to restrain execution upon it, where it was held that a bill would lie notwithstanding the plaintiff -- the defendant in the judgment -- had unsuccessfully moved the law court to open the judgment and let him into a defense. The Supreme Court pointed out that "opening a judgment in a court of law is always ex gratia. Restraining a plaintiff from proceeding upon it, if the defendant has an equitable defense, and has not been guilty of laches by failing to set it up when he had an opportunity, is demandable of right."

Ashton's Appeal, 73 Pa. 153 (1873) (Sharswood, J.) followed Wistar v. McManes, and notwithstanding that a rule to open the judgment had been discharged, a decree was entered restraining the defendants by injunction from issuing any execution on the judgment . . . . and from proceeding to levy any such execution upon the mortgaged premises or to sell the said premises upon any levari facias or execution in said judgment or from proceeding any further to enforce payment of the same, and ordering Ashton to enter satisfaction on the record of said mortgage.

Until the Act of April 4, 1877, P. L. 53, the opening of a judgment, or the refusal to open it, was within the discretion of the court of common pleas and not subject to review by the Supreme Court. Following the passage of that act, which allowed a review by appeal to the aggrieved party, "as equity cases are now appealed," Judge Mitchell, afterwards Chief Justice, in a note to his Motions and Rules, following a reference to the case of Wistar v. McManes, said (p. 77): "The effect of this statutory extension of the remedy by rule, on the question of barring a subsequent bill in equity for the same matter, and consequently on the practice, cannot, perhaps, be safely predicted." [Italics supplied]. But, shortly thereafter, the Supreme Court in Gordinier's Appeal, 89 Pa. 528, 529, 530, (1879) affirmed the decree of the court below dismissing a bill filed to restrain the defendant, (plaintiff in an action of ejectment), from issuing a writ of habere facias possessionem (see Gordonier v. Billings, 77 Pa. 498, 501, 502, 503) on the judgment obtained in that action, on the ground that the plaintiff in the bill had previously moved the court in the ejectment action for a rule to show cause why the plaintiff should not be enjoined from issuing a habere facias possessionem, and had thus "appealed to the equity powers of the court and . . . . prayed for the same measure of relief that he asks for now. It is true he did not proceed by bill, but he did proceed in a form in common practice, and the court, at that time, and in that form had as ample power to do equity as we have now." Referring to the decision in Gordinier v. Billings, supra, the lower court went on to say: "We do not understand this to mean that when there has been a motion on equitable grounds for an injunction which has been fully heard, and refused, that afterwards a bill in equity will be entertained on the same grounds. It seems to us to mean that the defendant had a choice of remedies, by motion or bill; if he had chosen the latter he could have had an appeal to the Supreme Court. If a party may try his chances on motion and, if he fails, sustain a bill afterwards, it tends to multiplicity of actions; for that is the course parties will be likely to pursue. Thus a court of competent jurisdiction will have to hear the same matter twice; first deciding 'a matter which rests in the sound discretion of the court below' (3 Watts & Serg. 91), and afterwards hear it again, to give an opportunity for review in the Supreme Court." [Italics supplied]. The Supreme Court affirmed the decree on the opinion of the court below.

The point seems to have been settled definitely by the Supreme Court in Frauenthal's App., 100 Pa. 290, (1882) where a decree in equity perpetually enjoining the appellant from collecting by execution a judgment against the appellee was reversed because the latter, the defendant in the judgment, had previously obtained a rule to stay the execution and open the judgment, which, after hearing, was discharged. The question before the Supreme Court was whether, by the decision on the rule, the matter was not res adjudicata, and the court, following the reasoning of the lower court in Gordinier's Appeal, supra, decided that it was. But the opinion writer, Mr. Justice Mercur, pointed out that in Gordinier's Appeal, the court had "declared the defendant had his choice of remedies by motion or bill. Having elected to proceed by motion and failed, he could not afterwards sustain a bill. If this were not so, a court of competent jurisdiction would have to hear the same matter twice. Therefore, he applied the rule that the judgment or decree of a court of justice upon a legal or equitable issue, within its jurisdiction, is binding and conclusive upon all other courts of concurrent power." He then continued: "If we adhere to the last decision of this court, it is fatal to the bill. Why shall we not so adhere? Under our system of jurisprudence the courts of common pleas have full equity powers. Many of them may be invoked either by motion and rule or by bill. In those cases where it is optional for a party to elect in which manner he will apply for the exercise of those equitable powers, and he does so elect, and the court, with full power to grant the desired relief, after full hearing, refuses it, why shall not the decision be conclusive? . . . . Whether the application to enjoin against issuing execution be by motion and rule, or by bill, the relief is sought through the exercise of the equitable powers of the court alone, and not through the intervention of a jury. The appellee in this case made his election. He submitted his alleged grievance to a court of competent jurisdiction. He had his day in court. The identical matter was adjudged against him." [Italics supplied].

The principle was reiterated in Morgan's App., 110 Pa. 271, 4 A. 506, (1885), a bill in equity to have a mortgage declared null and void and to enjoin defendants from proceeding upon the judgment obtained on an award...