77 Pa. Super. 441 | Pa. Super. Ct. | 1921
Opinion by
This is an appeal from a decree in equity requiring contribution by one partner to another.
We shall briefly indicate the proceedings giving rise to this appeal before referring to them in detail.
On December 26, 1913, Watt, the appellant, filed a bill in equity in the common pleas of Allegheny County against a number of defendants to restrain them from negotiating two promissory notes endorsed by him. On February 14, 1914, two of the defendants in that proceeding, Sturgeon and McQuaid, answered and, among other things, averred that they and Watt were partners trading as Pittsburgh Swing and Furniture Company, hereafter called the Swing Company. Other defendants answered subsequently. On February 20, 1914, McQuaid and the Swing Company, acting by Mc-Quaid as its general manager, filed a cross bill against Watt and Sturgeon averring the existence of the partnership and that neither Watt nor Sturgeon had paid his-entire capital contribution and desiring an order for such payment. A trial took place in which the issues were apparently enlarged by agreement, and resulted in a decree entered January 9,1919, affirmed and reported in 263. Pa. 187. The capital contributions were then duly made by both Watt and Sturgeon. Pursuant to that decree, however, a receiver was appointed “to state an account and to liquidate the indebtedness of said partnership.” He performed his duties and filed a report holding appellant liable to contribute to Sturgeon. Mc-Quaid left the jurisdiction. Appellant excepted to so much of the receiver’s report as required contribution to Sturgeon on account of Sturgeon’s payment of four judgments rendered against Sturgeon and McQuaid in the County Court of Allegheny County, February 19, 1914 [after the filing of Watt’s bill in the common pleas] in actions of assumpsit brought against the three of them as partners in January, 1914, in which the county court held Watt was not liable.
The position of the court below is thus stated: “The jurisdiction of the common pleas in equity attached to the affairs of this partnership before that of the county court. The records themselves prove this. And it is too well settled to require the citation of authorities, that where courts have concurrent jurisdiction the one which first obtains possession of the case has exclusive jurisdiction.”
The question here is whether the principle to which the court alludes, applies to the disposition of this case. Being constrained to differ from the court below, we shall now state the material facts somewhat more fully.
Four actions of assumpsit by different plaintiffs were brought in January, 1914, in the County Court of Allegheny County against Watt, Sturgeon and McQuaid, trading as the Swing Company. Sturgeon and McQuaid filed affidavits of defense averring that they and Watt were partners and admitting liability; Watt denied liability and partnership. These actions were tried by a judge without a jury and on February 19, 1914, he entered judgment for the respective plaintiffs against Sturgeon and McQuaid and held Watt was not a partner and was not liable. McQuaid, having left the jurisdiction,
Now what was the equity proceeding held below to exclude the jurisdiction of the county court to try the actions of assumpsit? Watt filed his bill against Sturgeon, McQuaid, Rosendale, the Rosendale Upholstery Company and the Pittsburgh Swing and Furniture Company, a Delaware corporation, to restrain them from negotiating promissory notes said by Watt to have been endorsed by him in consequence of alleged misrepresentation of facts, and desiring that the notes be cancelled. The bill contains no averments concerning any partnership. The only answers filed prior to the trials in the county court were filed by Sturgeon and McQuaid on February 16,1914; among other averments, they denied the incorporation in Delaware and set up that the Swing Company, defendant, was “an unincorporated association consisting of three persons, viz”: Watt, Sturgeon and McQuaid. That record, of course, raised no question-of accounting, receivership or dissolution; the answer might stop relief to the plaintiff Watt, but it could not get affirmative relief for the two answering defendants. That was the status of the equity proceeding when the judgments were rendered in the county court. We apprehend that it was probably the succeeding steps in the equity proceeding upon which the court relied for the conclusion complained of. It appears that on February 20, 1914, one day after the judgments were ren
It must be obvious from the foregoing recital of the proceedings in equity that it cannot be said that when the cases in the county court were tried, there was pending a proceeding in equity drawing to itself the determination of the issues raised in the county court, and unless that was apparent on the record, the rule referred to by the court below cannot apply: 7 R. C. L. 1069; 15 C. J.