139 A. 829 | Pa. | 1927
Argued September 30, 1927. John Doyle died on February 22, 1900, and, by his will, devised certain real estate to a daughter, now deceased, for her life, with remainder to three sons, whose shares have passed to others by will or under the intestate laws. Ida Doyle Kearns, the owner of a one-sixth interest in the property now in question, presented, on January 9, 1926, her petition to the orphans' court, praying that partition of it be made, designating as respondents all of those entitled to share, as understood by her, with a statement of the proportion owned by each. A citation was issued directing notice to the persons named, who were of age, and to the guardians of minors interested. A rule, to appear and show cause *266 why partition should not be had, followed, returnable June 12th. No answer was filed denying the right, and an inquest was awarded. The return, dated September 11th, setting forth that the property could not be divided, and, appraising its value at $8,000, was confirmed nisi.
Appellant, Mrs. Knouse, formerly Mrs. Edw. Doyle, resided with her son when the various notices were served upon him as a party in interest, and had full knowledge of the progress of the proceeding. The petitioner, Mrs. Kearns, did not know of the former's right to a proportionate share in the realty sought to be divided, and knowledge of this fact was not ascertained until after the return of the inquest; nor did she learn until then that Anna Doyle also had an interest therein. Both parties were promptly notified by counsel of the pendency of the action, and requested to join in correcting the record, so that the names of all the tenants in common should appear. Anna Doyle filed the necessary consent, but, after some delay, appellant refused.
On November 8th, an application was made for leave to amend the pleadings so as to add as parties the two omitted through ignorance as to their legal ownership. This was objected to by Mrs. Knouse, in an answer filed, in which she denied the power of the court to make the order requested, and, further, prayed for the dismissal of the whole proceeding as invalid, because of the defect in omitting to name all of those interested. The institution of an equity proceeding on October 26th, in which she was plaintiff, asking partition of the same property, naming as defendants those who were parties to the litigation pending in the orphans' court was also averred. She claimed the common pleas had thus first acquired jurisdiction, since the suit instituted by Ida Doyle Kearns was a nullity by reason of the nonjoinder of all entitled to share. This position was at first sustained by the court below, and the original partition proceeding dismissed on January 6, 1927. *267
Ten days later, an application for a rehearing was presented, in which the facts already stated were again set forth, and a rule granted to show cause why the decree should not be opened, the amendment prayed for allowed, and an alias writ of inquest awarded. After answer filed, a reargument was had before the court in banc, and a majority of the judges sitting reversed the former conclusion, holding the order previously entered should be set aside, and directed the two omitted persons be added as parties. It was further held that the jurisdiction of the orphans' court had not been ousted by the equity proceeding. To protect the rights of those newly joined, permission was given to file an answer on the merits to the original petition asking for a division of the land, if so desired. The previous inquest and return were set aside, and further proceedings thereon stayed, and it was directed that an alias writ be served upon all, returnable on April 9th. No answer or objection was interposed within the time fixed, and the court thereupon made a finding of the respective proportionate shares to which each of the parties was entitled, including those added by amendment, and directed "that an alias writ of inquest in partition issue." From this decree, Mrs. Knouse has appealed.
Both the orphans' court and the common pleas, sitting in equity, had jurisdiction to entertain partition proceedings, and, where two actions are brought, as here, in different courts, the one which first acquires control of the controversy will retain it to the exclusion of the other: Sprigg v. Com. Title Trust Co.,
By the Act of May 4, 1852, P. L. 574, in all actions the several courts "shall have power, in any stages of the proceedings, to permit amendments by adding the name or names of any party, plaintiff or defendant, whenever it shall appear that a mistake or omission has been made in the name or names of any such party." The orphans' court will ordinarily disregard form, and permit amendments by striking out parties (Downer v. Downer,
Partition proceedings concluded will be a nullity if the names of some interested have been entirely omitted (Perrine v. Kohr,
The orphans' court in this case had jurisdiction to entertain the petition presented. An indispensable party had been omitted, but was added by amendment. Though the inquest had been previously awarded, and an appraisement returned, by order of the court all proceedings were stayed, and Mrs. Knouse given the opportunity to file an answer on the merits, showing cause, if any, why partition should not be had. She was not deprived of the right to object to any division of the land, the award of a new inquest, or the making of a *270
new valuation. All privileges which she possessed and could have asserted, if first named as a party, were fully protected. In the dissenting opinion filed in this case in the court below, it is suggested that the judgment quod partitio fiat was not set aside, and therefore Mrs. Knouse was prejudiced. There was no such judgment entered, and could not have been except in a partition proceeding at law or in equity. There was an award of an inquest, upon the return of which the right to question the necessity for any partition could still be raised (Vensel's App.,
The suit in equity was instituted after the commencement of the partition proceeding in the orphans' court. The latter was defective because of the omission of two of the parties, but this was cured by the amendment later filed, and the appellant must be treated as if originally named therein: Nevin v. Catanach, supra. The jurisdiction of the orphans' court attached on January 9, 1926, which date is controlling in determining the question before us, though the addition of Mrs. Knouse was made later, and the bill was not filed in the common pleas until October following. The former court is therefore the proper tribunal to dispose of the controversy, as held below.
The decree is affirmed at the cost of appellant.