229 Pa. 200 | Pa. | 1910
Opinion by
As we view this record the learned court below erred in dismissing the bill as to all the defendants except appellant. The bill was filed against five defendants, two of whom, Shreve and Braddock, were treated as principals both in the averments of the bill and in the prayers for relief, and the other three were included because connected with the transaction about which complaint is made. The bill was dismissed as to all the defendants except Shreve upon whose shoulders the whole burden was cast without even extending relief to the extent of the unpaid purchase money, which, it is conceded, he never received, and to which relief he was clearly entitled if within the power of the court to grant. Braddock was a resident of the state of New Jersey in which was located the land out of which this controversy arose. Shreve, trustee for the bondholders, and as such a principal defendant, was a resident of Chester county, Pennsylvania, at the time'the bill was filed, and being properly served, was within the jurisdiction of the court. Braddock, being a nonresident, was served as authorized and directed by the act of 1859. He caused a general appearance to be entered for him and in his answer set up a general defense upon the merits. The other three defendants voluntarily appeared, accepted service and filed answers. All of the defendants were in some way interested in the property sold, or in the proceeds arising from the sale of it, or as mortgagor or mortgagee, or otherwise. It was a situation calling for the exercise of the equity powers of a court in such manner as to work out equitable and just results between the parties in so far as it could be done under the circumstances. Shreve was the active trustee and the bill was filed against him as such, but Braddock was also charged as being a trustee ex maleficio, and as such with having received moneys for which he had not accounted. As to the conduct of Braddock the court did not inquire and no finding was made as to his being a trustee ex maleficio, although this was
The bill was dismissed as to Braddock and the other defendants on the ground that they were nonresidents and not within the jurisdiction of the court or amenable to its processes.. The general rule is that when a court has jurisdiction of the person of a defendant it may render any appropriate decree acting directly upon the person, -although the subject-matter may be without the jurisdiction. When the court has jurisdiction over the subject-matter, or the person of a principal defendant, the rule prevailing generally in judicial proceedings applies to suits in equity. Objections to jurisdiction over the parties are waived by appearing on the merits. An answer to the merits waives an objection contained in the same answer that the defendant is a nonresident: Mutual Aid Association v. Richardson, 38 Ill. App. 111; Carroll v. Lee, 22 Am. Dec. 350; 16 Cyc. 120. In Phelps v. McDonald, 99 U. S. 298, it was held that where the necessary parties are before a court of equity it is immaterial that the res of the controversy, whether it be real or personal property, is beyond the territorial jurisdiction of the tribunal. It has the power to compel the parties to do those things necessary to give effect to the decree entered against them. Without regard to the situation of the subject-matter courts consider the equities between the parties, and decree in personam according to
Decree reversed, bill reinstated as to all the parties and record remitted for the purpose of having all questions affecting any or all of the parties determined in accordance with the general views herein expressed and upon the facts as they shall be ascertained upon a final hearing. Costs of this appeal to be paid by appellee.