Miller v. Cockins

239 Pa. 558 | Pa. | 1913

Opinion by

Mr. Justice Stewart,

A proceeding by bill in equity was instituted against the defendant in Allegheny County, the purpose of which was to have the defendant declared trustee with respect to the estate of his deceased wife, which he claimed had been given to him absolutely. Certain of the property of the estate was in Allegheny County, and as to this, a preliminary injunction, afterward made final, was granted restraining its alienation. Other property of the estate was in Maryland, where the decedent had resided and where her will had been admitted to probate. The defendant was a resident of the state of California when the proceeding was commenced, and he was there served with process under Act of April 6, 1859, P. L. 387. He caused a general appearance for himself to be entered, and, taking no exception to the service of the process, filed an answer to the bill denying all its material allegations, and denying that any trust existed with respect to the estate. Whereupon the case was proceeded with (see Blick v. Cockins, 234 Pa. 261), resulting finally 1st June, 1912, in a decree adjudging the defendant trustee with respect to the property of the estate, not simply that situate in Allegheny County, but of the entire estate, for the use and benefit of the complainants subject to his own life estate therein, and directing that he execute and deliver to the complainants a declaration of the said trust relation, and a full statement, of all the property, real and personal, of which his wife died seized. An injunction followed, enjoining the respondent from delivering over possession of such property to any one, or from assigning his interest therein otherwise than for his lifetime, and an order was made appointing the Commonwealth Trust Company of Pittsburgh trustee instead of the respondent. The orders of the court as expressed in the decree were served upon defendant in California, where defendant continued to reside, by registered letter. Denying the court’s jurisdiction over his person he declined to obey the orders in the decree directed against him personally, whereupon motion was made for sequestration of his property, and for an attachment for contempt. After hearing the motion prevailed and the order for sequestration and attachment followed. The appellant now seeks relief from the decree on the ground that the court was without jurisdiction to make it.

The case turns upon the question of the legal effect of the general appearance of the defendant to the proceeding, his answer to the bill of complaint, his personal presence during the trial as defendant and witness, and his failure to enter objection to the court assuming jurisdiction until after the final decree was entered. His counsel now insist that the proceeding was in the nature of a proceeding in rem, that is to say, that its only object was to protect the rights of the plaintiffs in such of the property of the estate as had its situs in Allegheny County; that it was only over such property that the court had jurisdiction, and none whatever over the person of the defendant who was a nonresident. If this view be correct and the sole purpose of the bill was to protect the property in Allegheny County, then the service upon the defendant was entirely adequate to the end sought, and the most appellant could expect would be a modification of the decree confining its operation to that specific property. It is, however, manifest that the bill embraced all the property of the wife’s estate wherever situated, whether within or beyond Allegheny County. It alleged a trust with respect to the entire estate, and the prayer was that defendant be required to carry out and perform the trust according to its terms. It is not to be questioned that in such case, where there is nothing to give jurisdiction other than the fact that some of the property is within the jurisdiction of the court, and the prayer is for a decree against the defendant personally the court has no authority to direct service of process upon a nonresident. The Act of April 6, 1859, with respect to process in equity proceedings applies only where the suit concerns property situated and being within the jurisdiction of the court, and is so limited. This was expressly ruled in Coleman’s Appeal, 75 Pa. 441, as the following extract from the opinion in the case, by Shabswood, J., shows: “If we examine the language of the Act of 1859, we must remark that it is strictly and carefully confined to two classes of cases. First, where a suit in equity has been or shall be instituted, concerning goods, chattels, lands, tenements or hereditaments, or for the perpetuating of testimony concerning any lands, tenements and so forth, situate or being within the jurisdiction of the court, or concerning any charge, lien, judgment,' mortgage or encumbrance thereon. And, second, where the court have acquired jurisdiction of the subject-matter in controversy, by the service of its process on one or more of the principal defendants. As to the cases comprehended in the first class, we are of opinion that the bill must be confined, at least so far as the interest of the foreign defendant is involved, to a prayer for a decree affecting only the property in question. If it goes further and asks for relief by a decree against the defendant, personally, though it would be entirely competent for the court to make such decree, if the person of the defendant was within their jurisdiction, it is not a case within the purview of the act, and the court has no authority to direct the service of process upon the defendant.” In the light of this decision — the bill here asking a personal decree against the defendant — we can entertain no doubt whatever that the service of the process in this case was a nullity, and the defendant could have disregarded it without prejudice. . Instead of pursuing this course he appeared to the suit, submitted to the jurisdiction, entered his defense on the merits, and took his chance of a favorable result. It was not until disappointed by the result and the decree was entered against him, that he questioned the jurisdiction. His appearance must be regarded as voluntary, since the process served was nugatory; and being voluntary he was in the same position he would have been in had he been personally within the jurisdiction of the court when the action was begun and he had been personally served. The effect of such appearance in giving the court jurisdiction was fully considered in Byers v. Byers, 208 Pa. 28, where our Brother Mestkezat, speaking for the court, says: “The defendant may attack the jurisdiction of the court which has summoned him to appear before it; and if he does so súccessfully, that relieves him from a contest in that court on the merits of the controversy. For this purpose, it is the usual practice to enter a conditional appearance. The case is then proceeded with until the question of jurisdiction is disposed of. But the defendant must confine himself in his pleadings strictly to this issue: Jeannette Borough v. Roehme, 197 Pa. 230. If he, in addition to his plea to the jurisdiction, set up a defense on the merits of the cause, he submits himself to the jurisdiction of the court and must abide by its judgment on both issues. He will not be permitted to avail himself of an opportunity to obtain a favorable decision on the merits and, at the same time, contest the authority of the court to hear the cause. The filing of a plea averring a meritorious defense is equivalent to a general appearance, and thereafter the defendant will be regarded as having submitted himself to the jurisdiction of the tribunal in which the cause is pending.” Had nothing been the subject of the bill in this case but property within Allegheny County, then the appellant having been properly served with process under the Act of April 6, 1859, might have been in position to assert that his appearance was not voluntary, but made in order to save property which was in the hands of a foreign tribunal; but as we have seen such was not the case; the subject of the bill was the entire estate of the deceased wife, and the declared object and purpose was to have the defendant adjudged trustee with respect to it. wherever situated. Defendant being a nonresident and the decree asked for being against him personally, no process served upon him in California could have required his appearance. But what the law could not have required of him he did of his own pleasure, and by voluntarily appearing to the suit, he was in court just as he would have been had he been within the jurisdiction of the court and there personally served.

The assignments of error are overruled and the appeal is dismissed.