373 Pa. 602 | Pa. | 1953
Opinion by
These appeals are an aftermath of our previous decision in this case reported in 369 Pa. 300, 85 A.2d 83. The parties there were Commonwealth of Pennsylvania to use of Willow Highlands Company v. Maryland Casualty Company and Edward W. Sliker. The com
The “further proceedings” thus invited thereupon ensued. Willow Company filed an answer to the Maryland Casualty Company’s new matter. The Trust Company petitioned for leave to intervene as a party use-plaintiff and was granted such permission, whereupon it filed a complaint in which it averred, in addition to the facts previously set forth in Willow Company’s complaint, that, after receiving the money of Willow Company, it deposited it in its settlement funds and allocated it specifically to certificate No. 982467 to be used in the mortgage settlement; that it charged the money it disbursed at the settlement against the Willow Company’s deposit; that it issued to Willow Company its title insurance policy No. 982467 in the amount of $5,500.00; that upon discovery of the forgery of the mortgage and in performance of its obligation under its policy it made payment on June 2, 1948 to Willow Company in that amount. Defendants filed an answer to the complaint reiterating their former position. Testimony was taken which clearly supported the assertions of the Trust Company that the money disbursed by it was charged
It is defendants’ contention that the decision of the court below is not in harmony with our opinion on the original appeal because we there stated that the Trust Company, when added as a party to the record, could recover only in its own right and not by way of subrogation to a claim of Willow Company. They lose sight of the fact, however, that the decision of the case in the former appeal was based solely on the pleadings there presented, and, since the Maryland Casualty Company in its new matter had asserted that the money deposited by Willow Company with the Trust Company had been returned to it and not disbursed by the Trust Company, since nothing was stated as to the issue of any insurance policy, and since Willow Company filed preliminary objections to the new matter in the nature of a demurrer, we necessarily held that the right of action against the defendants lay, not with Willow Company nor with the Trust Company by -way of subrogation, but with the Trust Company in its own right. This left open to Willow Company the right to file an answer to the
Judgments affirmed.