Clark v. Clark

180 Pa. 186 | Pa. | 1897

Opinion by

Mr. Justice Mitchell,

The record of this case is discreditably careless in its makeup, and presents irregularities that have given us much unnecessary trouble to disentangle. The appellant filed an answer, and it appears that the case was heard on bill, answer and proofs in- open court some time in June, 1896, and a decree made. This decree, from the negligence of the clerk or other unexplained reason, does not appear on tbe record but it seems to have included an order to account, for on October 24, 1896, after'the certiorari was brought into the office, the court filed a formal decree nunc pro tunc as of June 17, ordering the defendant (appellant) to file an account on or before September 1. This decree nunc pro tunc like its predecessor was not entered on the docket, and appears only by a type-written copy,, not attested in any way, but merely pinned to the record on a separate piece of paper. The right of the court to correct its record and supply deficiencies to make it conform to the facts at any time before actual return of the certiorari to this court, is not questioned, but the whole record should be carefully and properly made up and certified, and if that was done before the decree was made, then the decree should have been sent up by a special return sur diminution of record. The clerical short cut. of pinning the paper to some other after the roll is made up and certified cannot be tolerated, and we should send this record back to be properly made up, if it were not that that course would impose delay and hardship on the appellee for what is not her fault, and that the case really turns on a second decree which will be noticed hereafter.

In the meantime between the decree of June and the decree nunc pro tunc in October, on September 26, the appellant, apparently without asking leave, filed a demurrer raising the question of jurisdiction, and the court, without adverting to the fact that the case had already been heard and decided, filed an opinion overruling the demurrer and again directing the appellant to account without further delay. From this order the present appeal is taken.

The decree quod computet though interlocutory, is the subject of appeal by virtue of the Act of June 24,1895, P. L. 243. It is urged by appellee that the objection to the jurisdiction came too late, and the case of Fennell v. Guffey, 155 Pa. 38, .affords support to that argument. But the court below was clearly right on the general question. The appellant having the legal title to certain real and personal estate agreed to hold the property subject to certain interests of the plaintiff and -others therein, and to account in the mode and upon the principles set out in a written agreement of all the parties, dated July 2, 1877. This writing is the foundation of the present bill. By it the appellant clearly constituted himself a trustee, and became liable to account in any court having jurisdiction over him, not by virtue of any statute as to tenants in common, but by the general jurisdiction of chancery to compel performance of equitable duties or the enforcement of equitable rights wherever the party may be found, without reference to the locality of the land. It is sufficient to refer to our own recent case of Jennings v. Beale, 158 Pa. 283.

The Act of April 25,1850, sec. 24, P. L. 573, has no application to the case. That refers to tenants in common each holding by his own title and having by such title the right to enter and take coal, iron or other mineral from the land. The act gives a new and cumulative remedy to such tenants against a •cotenant who takes more than his share. Nor does the Act of April 22, 1856, P. L. 502, apply. Whatever may be the extent ■of jurisdiction conferred by the phrase “ otherwise interested in any coal or iron mines or other minerals ” contained in that act, it is plain that it was not intended to be substituted for, or to take away the ancient equity jurisdiction over a trustee called •upon by his cestui que trust to account. Nor is appellant helped by the Act of June 14, 1836, sec. 15, P. L. 632. The bill sets out in paragraph one, that the defendant “ resides and is domiciled in the city of Philadelphia.” If the fact of residence had, as now argued, any bearing on the question of jurisdiction, the objection should have been promptly made, Fennell v. Guffey, supra, but so far from making the objection, the appellant admitted in his answer the truth of the facts in paragraph one of the bill, and of course he admitted them again by his demurrer.

Appeal dismissed with costs.