51 Pa. Super. 224 | Pa. Super. Ct. | 1912
Opinion by
This appeal is from an order, and judgment thereon, in a proceeding instituted under the Act of March 8, 1889, P. L. 10, as amended by the Act of April 16,1903, P. L. 212. It raises a question of practice of some importance. It is reasonable to hold that, where, though the respondent appears and answers, time enough remains after his answer is adjudged insufficient and the rule is made absolute to enable him to bring action within six months from the date of service of the rule, final and conclusive judgment may be entered against him, if he fails to bring his action within that period: Utley v. Cobb, 42 Pa. Superior Ct. 484. But where he appears and answers, and through no fault of his the rule is not heard and disposed of by the court within the six months, there is apparent merit in the contention that he ought to have a reasonable time thereafter, to be fixed by the court, within which to bring his action. This might not be so if the answer was plainly frivolous and manifestly intended for delay. But an answer may not be of that character, and may be made in the utmost good faith and upon the advice of competent counsel, and yet be adjudged insufficient. Whether it shows cause, is a preliminary matter to be determined by the court, and the respondent is entitled to have the judgment of the court upon it. Must he be deemed concluded by his failure to bring action within six months from the. date of the service'of the rule, even though at the expiration of that period that preliminary matter remains undetermined? We know of no decision of the Supreme Court or of this court, under these statutes, that absolutely rules the precise question. But there are at least two reported cases where, under such circumstances, the court, upon adjudging the petition to be sufficient and the an
There is an additional reason why the judgment, as it now stands, cannot be affirmed. The petitioner alleged in his petition that he owned, and was in possession of, a tract of land, described by metes and bounds, containing about 118 acres; that the respondent, residing on an adjoining farm, claimed title to a triangular portion of it, also described by metes and bounds, containing from one-third to one-half an acre; and that he, the petitioner, was “desirous of settling the title to the aforesaid portion in dispute hereinbefore described or any portion of the aforesaid farm of 118 acres and 106.9 perches that is claimed by the said W. H. H. Smyers.” Upon presentation of this petition the court granted a rule on the respondent, returnable on the first day of the next term, “to bring his action of ejectment within six months from the service of this rule upon him for the within described triangular parcel of land or various portions of said larger farm as the said W. H. H. Smyers claims title or to show cause why the same cannot be brought,” etc. We remark in passing, that the indefiniteness of the rule itself furnishes an additional reason for holding that the respondent should have had reasonable opportunity to bring his action after
The judgment is reversed, the order making absolute the rule is modified so as to apply only to the triangular piece of land described in the petition, and the record is remitted with direction to enter judgment against the respondent therefor, unless within thirty days from this date he shall have brought his action of ejectment for the land last referred to; the costs of this appeal to be paid by the appellee.