35 A.2d 282 | Pa. | 1943
William F. Carter et al. appeal from a decree, entered by the court of common pleas in a proceeding, in equity, ordering partition of a large tract of land in Highland Township, Elk County. *430
Appellee, Central Pennsylvania Lumber Company, filed its bill of complaint, wherein appellants and Arthur G. Baird and his wife were named as defendants, praying that partition be made of the property, containing 1005 acres, and known and designated on the general map or draft of Elk County, as Warrant No. 1831. In their answer, appellants agreed to the partition of the surface, but by way of "New Matter" set up a claim for an accounting for certain timber and bark appellee admittedly cut and removed from the tract in 1928 and 1929. Upon dismissal of its preliminary objections, appellee filed a reply, averring that it was the owner of all timber and bark cut and removed, and raising the defense of res judicata and laches.
The chancellor, after hearing, found the following to be the facts: Appellee is the owner of an undivided eight-tenths of the surface of the land in question; appellants are the owners of a one-tenth interest, including the surface and minerals; and Baird the owner of the remaining one-tenth, including the surface and minerals. Some of appellants and the predecessors in title of the others had instituted an action in trespass in the court of common pleas of Elk County on April 4, 1934, against appellee herein, claiming damages for the alleged wrongful removal of timber and bark from this identical tract during the period for which an accounting is now sought. That suit proceeded to trial and on April 13, 1936, resulted in the entry of a compulsory nonsuit, and no appeal from the refusal to remove it was ever taken. At the hearing in the instant case, counsel for appellants agreed that partition, as prayed for, should be made according to the interests of the various parties. Although duly served, no appearance was entered or answer filed by defendants, Baird and his wife, and as to them the bill was taken pro confesso. On these findings, the learned chancellor concluded that appellants had no standing to require appellee to account, since, among other things, their claim was barred by laches, and further *431 that the compulsory nonsuit entered in the action in trespass was res judicata of any right appellants might have had to an accounting. Accordingly, a decree nisi was entered, directing that partition be made, without requiring appellee to account; and this action of the learned chancellor was confirmed by the entry of a final decree, after argument on exceptions. Appellants then appealed to this Court.
As to res judicata, we said, in Brobston v. Darby Borough,
While it is true that the mere entry of a compulsory nonsuit is not res judicata (Std. Pa. Prac., Vol. 6, § 2); nevertheless, it is otherwise if plaintiff files a motion to set the nonsuit aside, as was done by appellants in the present controversy, and the decision is against him and he fails to take an appeal and secure a reversal (Fine v. Soifer,
Even if appellants were not thus precluded, their claim would be barred by laches, for it is clear that they failed to exercise due diligence in proceeding to assert their rights, if any they had. Appellee cut and removed *433 the timber and bark from the tract in 1928 and 1929, and of this fact appellants had full knowledge, and yet from then until the time the present bill of complaint was filed by appellee — a period of eleven years — these appellants did nothing, other than to institute the trespass action, to recover the value of the claimed one-tenth interest in the timber and bark cut and removed.
For these reasons, if for no other, we are firmly convinced that the decree as finally entered must be affirmed.
Decree affirmed.