60 A.2d 35 | Pa. | 1948
This case is here on a petition filed in this Court January 2, 1948, by defendant for the reduction of the amount for which we directed judgment to be entered for want of a sufficient affidavit of defense in Lance v. Mann,
The suit was for money due on sale of a partner's interest. Part of the consideration was defendant's agreement to pay "all Federal income taxes on the partnership earnings of the said retiring partner [the plaintiff, Lance] from January 1st, A.D. 1942, to June 12th, A.D. 1942, as if those earnings were the total earnings" of Lance "from all sources for the year 1942." The ascertainment of Lance's income tax for 1942 became subject to the Current Tax Payment Act of June 9, 1943. In arriving at the amount for which we directed judgment, it appeared that Lance had reported an income tax for 1943 amounting to $16,904.16,1 which was an element in our calculation: see page 386. In September, 1946, after the judgment was paid, the Bureau of Internal Revenue audited Lance's tax return and determined that his 1943 income should have been returned as $27,551.80. Defendant's petition now alleges that if the amount of this assessment of $27,551.80, so determined by the government's audit, had been available to this Court instead of the amount of $16,904.16, reported by plaintiff, defendant's liability to plaintiff would have been $29,344.74 instead of $37,330.47, and that defendant petitioner is entitled to restitution in the sum of $7,985.73.
Plaintiff filed a responsive answer to the petition. He avers that the judgment was duly entered and paid; that the contingency furnishing the basis of the present petition, that is, the possibility that the income tax which he reported for 1943 might be increased by the government, was, or should have been, contemplated when defendant filed his affidavit of defense; that the judgment by this Court directed to be entered, settled everything involved in the right to recover, not only matters raised, but those that might have been raised. In the 9th paragraph of plaintiff's answer he avers: "Upon the rendition by this court of its judgment of *28 January 7, 1946, adopting, with modifications, the measure of appellant's liability to appellee urged by appellant as set forth in paragraph 8 above, appellant did not petition this court for re-argument of his appeal, and did not, by that or any other means before the remanding of the record to the court below point out the defense, then available to him, that appellee's tax liability as declared by said return on his income earned in 1943 remained, under the laws of the United States, subject to examination, review, and possible assertion and assessment of a deficiency therein by the Collector of Internal Revenue."
It is elementary that judgment settles everything involved in the right to recover, not only all matters that were raised, but those which might have been raised: Myers v.Bethlehem,
A judgment may be subject to proceedings on equitable principles so long as it remains a judgment and a petition to modify may be regarded as an equitable application for relief from the effect of the judgment *29
(compare Sinking Fund Commissioners v. Philadelphia,
Petition dismissed without prejudice to the proceeding between the same parties now pending in the court of common pleas. Costs to be paid by the petitioner.