Smith v. Carter
| Decision Date | 06 January 1908 |
| Docket Number | 178 |
| Citation | 219 Pa. 315,68 A. 736 |
| Parties | Smith v. E. D. Carter et al., Appellants |
| Court | Pennsylvania Supreme Court |
Argued October 22, 1907
Appeal, No. 178, Oct. T., 1907, by E. D. Carter et al., from decree of C.P. Indiana Co., Sept. T., 1905, No. 5, on bill in equity in case of D. M. Smith and E. B. McGara v. John McGaughey, J. C. King, W. H. Stamey, E. D. Carter, Louis Streuber, B. E. Cartwright and B. E. Cartwright, Executor of L. P. Snyder, deceased, Defendants, E. D. Carter, Louis Streuber, B. E. Cartwright and B. E. Cartwright, Executor of L. P. Snyder, deceased, Appellants. Affirmed.
Bill in equity for an account. Before TELFORD, P.J.
The opinion of the Supreme Court states the case.
Errors assigned among others were (1) refusal of motion to set aside service; (2) entry of decree pro confesso; (3) refusal to strike off decree pro confesso; (4) in entering a decree against the appellants on an issue joined between plaintiffs and W. H. Stamey, J. C. King and John McGaughey.
The assignments of error are overruled and the decree of the court below is affirmed.
Fred H Ely, with him J. Wood Clark, for appellants. -- John McGaughey was not a principal defendant: Elk Brewing Co v. Neubert, 213 Pa. 171; Artman v. Giles, 155 Pa. 409; Coleman's App., 75 Pa. 441; Wallace v. United Electric Co., 211 Pa. 473.
Plaintiffs cannot enter a decree pro confesso after the motion to set aside service of the bill had delayed the filing of their answer for more than thirty days after the service of the bill, without first giving them notice to or entering a rule on them to plead, answer or demur.
J. N. Banks and Harry White, for appellees.
Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.
The learned judge of the court below has correctly disposed of the questions raised on this record and we agree with his conclusions.
The service was made on the appellants by virtue of the Act of April 6, 1859, P.L. 387, 2 Purd. (13th ed.) 1422. The lands and tenements named in the bill and out of which the suit grew are within the jurisdiction of the court below. The bill was served upon John McGaughey, a citizen and resident of Indiana county, and claimed by the plaintiffs to be a principal defendant. After service had been made upon McGaughey the plaintiffs presented their petition to the court averring that the bill had been served on McGaughey, "one of the principal defendants therein, who resides in the county of Indiana," and prayed that an order be made directing service of the bill with notice to appear and answer on the appellants who did not reside within the jurisdiction of the court. The order was made as prayed for and service was made in pursuance thereof on each one of the appellants. Counsel for appellants appeared specially for the purpose of moving the court to set aside the service upon their clients and entered a motion that the service be set aside, assigning as reasons therefor that under the allegations of the bill the court had no jurisdiction over nonresident defendants and had no authority to order the bill served on such defendants, and that John McGaughey was not a principal defendant. It was conceded in the court below that if McGaughey was a principal defendant that the court had authority to order the bill served upon the appellants. The learned judge below held McGaughey to be a principal defendant, observing in his opinion that "whatever may be disclosed upon a full hearing of this case, an inspection of the allegations of the bill leads us to the conclusion that John McGaughey is a principal, an active and not a passive defendant." The court was entirely right in its conclusion. The bill averred, inter alia, "That your orators have not been able to ascertain and cannot tell which of the defendants, or how many of them, have the moneys coming to your orators, or the difference between $25.00 and $42.50 per acre yet owing and unpaid on said 1,075 acres and seventy-four perches of coal and mining rights and privileges owned by your orators, but that the same are in the hands of said defendants, or some of them, and should be accounted for and paid over to your orators and to the parties entitled thereto." It was a question, under the facts averred in the bill, who should account for the moneys alleged to be due the plaintiffs and, as suggested in the opinion of the learned trial judge, it was a question whether McGaughey, King and Stamey were not liable to the plaintiffs for the entire purchase money of the property in question. These defendants, however, filed answers denying their liability to account to the plaintiffs for any part of the money. The transactions between all of the defendants growing out of the sale of the coal options were so connected and so complicated that it became necessary to bring all the parties before the court in order to enforce the rights of the plaintiffs to an accounting. This made McGaughey a principal defendant and conferred jurisdiction on the court to make the order of service under the act of 1859.
The bill was served on the appellants in September, 1905. The order of the court refusing to strike off the service was filed January 10, 1906. Answers were filed by McGaughey, King and Stamey on April 2, 1906, and issue was joined as to them on April 12, 1906. Judgment pro confesso was entered against the appellants on April 16, 1906. The same counsel again appeared for the appellants on February 23, 1906, and on May 23,...
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