208 Pa. 23 | Pa. | 1904
Opinion by
This was a bill filed against William S. Byers and the Fidelity Title & Trust Company of Pittsburg in the court of common pleas, No. 2, of Allegheny county, to compel the surrender to the plaintiff of 175 bonds of the par value of #1,000 each of the Mount Pleasant Coke Company and to compel the defendants to pay to the plaintiff #40,000 in cash or' to deliver to him the securities into which the money may have been converted. The bill averred that the bonds had been entrusted to the defendant Byers for safe-keeping and • were to be returned on demand to the plaintiff, and that the money was to be invested and the securities were to be delivered to the plaintiff. These bonds and securities, it was alleged, had been deposited, and were in a private box of the trust company in the city of Pittsburg. On the filing of the bill an injunction was granted restraining the defendants from opening the safe deposit box and from taking or permitting to be taken therefrom the bonds, cash, securities or other contents of the box. The decree awarding the injunction recited that Byers was a resident of Westmoreland county, and it, appeared by the sheriff’s return that the injunction was served on him in that county “ by handing him a true and attested copy and with copy of bill of complaint thereof to him personally.” Byers entered an appearance de bene esse. He moved the court to vacate the order authorizing personal service of the bill to be made on him in Westmoreland county and to set aside the service, but the motion was denied. He then filed a demurrer and plea to the bill; but the demurrer was overruled and the plea was struck off and he was directed to answer. The trust company filed an answer from which it appears that Byers was the lessee of one of the safe boxes located in its safe deposit vault, that he alone had access to the box and that the respondent had no knowledge of "its contents. In obedience
On the vital question in the case, the ownership of the property in controversy, the trial judge, sitting as a chancellor, after a full consideration of the voluminous testimony presented for his consideration has found against the claim of the appellants and in favor of tbe appellee. To justify us in reversing the finding of a chancellor on a question of fact, as we
It is contended by the appellants that the court below was without authority to hear and determine the cause inasmuch as it had jurisdiction neither of the subject-matter nor of the persons of the defendants. It is conceded that the appellants have never been residents of Allegheny county, and it is claimed by them that the provisions of the act of April 6,1859, providing for service of process on nonresident defendants in certain cases in equity, were not complied with, and some of the members of this court including the writer incline to that opinion. But we need not and do not decide the question, as we are clearly of the opinion that the appellants are now precluded from raising it by the answers they filed in the case.
The defendant may attack the jurisdiction of the court which has summoned him to appear before it; and if he does so successfully, that relieves him from a contest in that court on the merits of the controversy. For this purpose, it is the usual practice to enter a conditional appearance. The case is then proceeded with until the question of jurisdiction is disposed of. But the defendant must confine himself in his pleadings strictly to this issue: Jeannette Borough v. Roehme, 197 Pa. 230. If he, in addition to his plea to the jurisdiction, set up a defense on the merits of the cause, he submits himself to the jurisdiction of the court and must abide by its judgment on both issues. He will not be permitted to avail himself of an opportunity to obtain a favorable decision on the merits and, at the same time, contest the authority of the court to hear the cause. The filing of a plea averring a meritorious defense is equivalent to a general appearance, and thereafter the defendant will be regarded as having submitted himself to the jurisdiction of the tribunal in which the cause is pending.
Having determined that the appellants had by their answers submitted themselves to the jurisdiction of the court, the other questions raised on the record become immaterial and need not be considered.
The decree is affirmed.