34 Pa. 354 | Pa. | 1859
The opinion of the court was delivered by
As the main question in this case is one of jurisdiction, it seems to me, that a proper plea, presenting that issue, would have been more consistent with legal symmetry and logic. It may be true, as a general rule, that want of jurisdiction may be taken advantage of at any time — but this does, not prove the propriety of ignoring such a plea in all cases, especially when the jurisdiction is primé facie general. Here, the plaintiff was nonsuited under an Act of Assembly by no means general, or applicable throughout the state. If there had been a verdict and judgment in the case, as there would have been, in a like case, in most of the districts in the state, on the pleas of “payment,” and “ never indebted,” and affirmed here, an awkward case would have followed an attempt to enforce payment of the matter sued for in another court. It is obvious, that the District Court had jurisdiction of the action of debt, but was ousted of it by the several statutes regulating the jurisdiction of the Orphans’ Court. There was no objection that this was not pleaded, and the question was discussed as if it had been — and hence there is no difficulty in this case, but a different practice would be advisable.
The main and decisive question in the case is, as to the jurisdiction of the Orphans’ Court of Washington county. Had it exclusive power to enforce distribution, after settlement of the account of the executors of Marcus Black, deceased? Or, can an action at common law be maintained on the decree of distribution in the Orphans’ Court, to recover the distributive share of a plaintiff, as attempted here ? These questions are res adjudicaba, and we will not discuss them. In Shollenberger’s Appeal, 9 Harris
We do not think it necessary to discuss the question, whether there was, in substance, a final decree in this ease; if there was not, certain it is that this would have been a ground for nonsuit. Nor another position taken by the plaintiff in error, that the Act of Assembly authorizes a common law action for a legacy; this is not what was declared for here, and the question was not involved.
The plaintiff in error can have all his rights, by simply proceeding in the Orphans’ Court of Washington county. The delay occasioned by those in the District Court was neither the fault of the law, nor, perhaps, of the defendants.
Judgment affirmed.