Steel v. Levy

• Decision Date: 02 February 1925
• Docket Number: 172,173
• Citation: 127 A. 766,282 Pa. 338
• Parties: Steel, Appellant, v. Levy
• Court: Pennsylvania Supreme Court

127 A. 766

282 Pa. 338

Steel, Appellant, v. Levy

Nos. 172, 173

Supreme Court of Pennsylvania

February 2, 1925

Submitted January 5, 1925.

Appeals, Nos. 172 and 173, Jan. T., 1924, by plaintiff, from judgments of C.P. Blair Co., June T., 1922, Nos. 41 and 42 for defendants, in cases of M. Anna Steel v. Willard N. Levy and M. Anna Steel v. Willard N. Levy, Milton H. Turney and Hurley H. Fleck. Reversed.

Assumpsit. Plea in abatement, affidavit of defense and plea in bar. Before BALDRIGE, P.J.

The opinion of the Supreme Court states the facts.

Judgment for defendants. Plaintiff appealed.

Error assigned was, inter alia, judgment, quoting it.

In each case the judgment of the court below is reversed and a procedendo awarded.

Thos H. Greevy, Wm. Wallace Chisolm, Harry E. Clark and R. A. Henderson, for appellant.

John F. Sullivan and O. H. Hewit, for appellees.

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

OPINION

MR. JUSTICE SIMPSON:

The records of these two cases disclose more mistakes by counsel and errors by the court, than usually appear in judicial proceedings, -- the errors probably resulting from the court's desire to straighten out the mistakes of counsel, and to expedite the determination of suits which he believed should not have been begun. Happily the appeals are sufficiently alike to enable us to dispose of them in a single opinion.

In the first case, speaking generally and tersely, plaintiff sought to recover, under one statement of claim, for money loaned to defendant; for salary and boarding bills due by him to her; for use and occupation of a property, to the possession of which she was entitled; for personal property of hers wrongfully taken and converted by the defendant to his own use; for personal property of hers obtained from her and her brother by duress and coercion, after a false arrest and imprisonment, and threats to continue the restraint unless the property was delivered to defendant; and for the value of two mortgages she was compelled to satisfy under the same duress and coercion. This epitome demonstrates that there was an improper joinder of causes of action (Kinney v. Harrison Manufacturing & Boiler Co., 22 Pa.Super. 601, 603), but, as defendant did not object, the error was waived: Parry v. First National Bank of Lansford, 270 Pa. 556.

In answer to the statement, defendant filed two papers, both on the same day: (1) a plea in abatement, alleging the pendency of another suit for the same causes of action; this was improper, as such pleas are expressly abolished by section 3 of the Practice Act of May 14, 1915, P.L. 483; and (2) an affidavit of defense and plea in bar, in which he presented issues of fact as well as of law, the latter being based on the allegation that the same causes of action had already been, or could have been, heard and disposed of, in the trial of a previous suit between the same parties, in the same court. Joining the two kinds of defenses was a procedural mistake; only the legal issues should have been advanced in the first instance: Jackson v. Myers, 260 Pa. 488. The averments of fact, out of which the question of res adjudicata were attempted to be preliminarily raised, was entirely new matter, the statement of claim containing nothing on the subject; defendant nevertheless ordered the case down for a hearing of this question, and the court below, being of opinion it could take judicial notice of the record of the prior case, and also that it was res adjudicata of nearly all the items set forth in the statement, entered judgment for defendant as to them, -- without giving plaintiff any opportunity to deny the existence and conclusive effect of the record referred to, -- but left the present case open for a trial of the balance of the claims.

This judgment was clearly erroneous. Prior to the Practice and Procedure Acts no such course could have been taken, no matter how or from what source the court acquired the knowledge which was supposed to be sufficient to defeat the claim. At that time, plaintiff had the right to deny the existence of such a record, and have the issue thus raised tried before a jury in due course. Those statutes did not alter the substance of this practice; they only specified a different method for raising the issue. They did not give the court power to import into the record of a particular case for the purpose of entering a summary judgment, anything the parties do not agree shall be placed in it: Bovaird v. Barrett, 78 Pa.Super. 68. Where an affidavit of defense raises question of law it is but a statutory demurrer defense raises questions of law it is but a statutory demurrer (Hutchinson Baking Co. v. Marvel, 270 Pa. 378, 381), upon the hearing of which the only point to be decided is whether or not, on the facts averred in the statement, it clearly appears, as a question of law, that plaintiff is not entitled to recover: Rhodes v. Terheyden, 272 Pa. 397. Any demurrer, not founded upon averments of the statement, is a speaking demurrer, which from the earliest days has been held to be bad (Brownsword v. Edwards, 2 Ves. 243, 345), and is...