12 A.2d 16 | Pa. | 1940
Appellee, husband, on March 7, 1935, filed a bill in equity against his wife, the appellant, to declare and enforce a resulting trust in real estate, title to which was in her. In due course, the bill was taken pro confesso for want of an answer and a final decree was entered in favor of appellee as prayed for.
On April 23, 1937, more than two years after its entry, appellant filed a petition to open the decree. The petition was refused, and on appeal this Court held that under the circumstances of the case, as fully set forth in the opinion reported at
Thereafter, appellant, in a second attempt to have the decree pro confesso opened, filed a "Petition for Bill of Review" and a "Supplemental Petition for Bill of Review" in the court below, setting forth certain so-called after-discovered evidence and asking that the decree be reviewed and opened and petitioner let into a defense. The "after-discovered evidence" consisted of a letter allegedly written by appellee to the appellant subsequent to the decree pro confesso and prior to the first proceeding to open the decree, in which he admitted, contrary *154 to the averments of his original bill and contrary to the averments of his answer to the first petition to open the decree, that the money which was used to pay for the property in question was not his, but appellant's. The letter, it was alleged, was lost by appellant a day or two after its receipt, and, in spite of diligent search, was not found until a few days after this Court's decision affirming the refusal of the first petition to open the decree, although, as the court below points out, it does not appear that the number of appellant's papers was so great, or that her filing system was so involved that she could not have found such letter if it actually was among her papers and if she had used reasonable diligence. It is from the refusal by the court below of this second application to have the decree pro confesso and final decree thereon opened that the present appeal was taken.
Under Rule 51 of the Rules of Equity Practice, a decree pro confesso may be opened and the defendant let into a defense, upon sufficient cause shown. But as we said when this case was here before, citing United Natural Gas Co. v. James Bros.Lumber Co.,
Apart from any question as to whether or not the mere subsequent finding of the alleged letter constituted it "after-discovered evidence," and apart from the effect of the omission of the appellant, in the opinion of the court below, to exercise due diligence in bringing it to the court's attention, the refusal of appellant's second application to have the decree opened was clearly a sound exercise of judicial discretion.
Although there seems to be no absolute rule forbidding a second application to open a decree pro confesso in an appropriate case upon good cause shown therefor, after a first application has been denied for failure to *155
show such cause it is manifestly not an abuse of discretion to deny a second application where the additional or new facts therein set forth are not such as would have imperatively required a different conclusion had they been brought forth at the time of the first application. Inasmuch as the so-called "after-discovered evidence" now offered by appellant is in no way exculpatory of her inaction and delay in asserting a defense, the circumstances surrounding such inaction require this Court on the present appeal, as when the case was here before (see Mitchell v. Mitchell,
While a decree pro confesso will not be opened in the absence of a meritorious defense, since nothing would be accomplished thereby (Matz v. Fazio,
The decree is affirmed at appellant's cost.
