136 Pa. 349 | Pennsylvania Orphans' Court, Philadelphia County | 1890
Opinion,
Notwithstanding the complicated history of the case, anh the varied phases of the litigation by the appellant in pursuit of a remedy, this record presents but a single question, and that is one of jurisdiction. The auditing judge, though apparently against his own opinion on the law, reviewed the evidence, and held that there was no partnership • established. But the court in banc refused to consider the merits at all, and decided the case solely on the question of jurisdiction. It is the decree of the court only that we have before us, and we must look at it, and at the opinion of the judge, if necessary, to ascertain just what the court considered and determined. At law, the judgment must sustain itself as a whole, and the reasons adduced in the opinion of the judge are technically no part of the case. But in equity, especially where a claim is dismissed “ without prejudice,” the opinion of the chancellor is an. integral part of the proceedings, which must be looked at to gather the exact tenor and extent of the decision. The decree here is that appellant’s exceptions “ are dismissed without prejudice, per opinion by Penrose, J.,” and, turning to that opinion, we find it expressed in the clearest possible terms that
The executrix of Charles B. Miller having filed her account, the appellant came into the court below claiming a balance due him as surviving partner of the decedent. The fact of partnership was denied. It was the basis of the appellant’s claim, and, until it was established, no step could be taken towards an accounting. But, even assuming it to be established, the accounting must be mutual, and the balance might be against the claimant. Has the Orphans’ Court jurisdiction of such an issue ? To state the question, thus cleared of irrelevant matters, seems to answer it in the negative. It is not claimed that an account was stated by the assumed partners, in the lifetime of both, and a balance found due to appellant upon which he would have a standing as a creditor, to maintain assumpsit, or to come in as a • claimant upon the fund. His standing as a creditor at all, in which character alone can he make his claim, depends oñ the establishment of the disputed facts of the existence of a partnership, and a balance due him as a creditor partner upon the accounting. These facts the Orphans’ Court has no jurisdiction to determine, nor would it have any means of enforcing payment by appellant should the account, when stated, show a balance against him. Such issues belong to the Common Pleas, either in an action of account, or in the more convenient form of a bill in equity, where the chancellor has control over both parties to enforce performance whichever way the final result may turn out. Even in a case where the settlement of partnership accounts seemed to be involved in the specific execution of the contract of a decedent to convey laud, it was said by our Brother Sterrett, that “ it was never intended by the framers of the act of 1834 to oust the jurisdiction of equity in the settlement of partnership transactions, in which questions of title and specific performance of agreements in relation to real estate are very frequently involved. In such cases the court of equity is the proper forum.....The Orphans’ Court has no power, expressly or by implication, to take cognizance of partnership
The appellant is of course entitled to a hearing on the merits of his case, but his forum is the Common Pleas. If his previous efforts there have, as seems from the history of the case, been defeated solely upon the question of jurisdiction, they will not stand in his way now to a hearing upon a proper bill.
Decree affirmed.
