23 A.2d 419 | Pa. | 1941
Defendant was the holder of a mortgage on premises 354 West Johnson Street, Philadelphia, dated April 4, 1932, and payable at the expiration of three years thereafter. On April 11, 1940, defendant began foreclosure proceedings against the mortgagor and plaintiffs as real owners. On April 30, 1941, defendant obtained judgment for want of a sufficient affidavit of defense, and on *652 August 7, 1941, a levari facias was issued for the sale of the property. On August 12, 1941, plaintiffs filed the present bill in equity for an accounting and to restrain defendant from proceeding in the foreclosure action. Preliminary objections to the bill on the ground of res adjudicata were sustained by the court and the bill was dismissed. Plaintiffs appeal.
As the foreclosure proceedings were referred to by term and number in the bill and were thus made a part of the present record, the defense of res adjudicata could be raised by preliminary objections: Kowatch v. Home Building LoanAssociation,
After the bill was filed, plaintiffs took a rule to show cause why the proceeding they themselves had initiated should not be removed to the United States District Court. That rule was properly discharged because, under the Act of Congress of March 3, 1887, c. 373, § 1, 24 Stat. 552, 28 U.S.C.A. § 71, only a defendant has the right to seek removal from a state to a federal court: Shamrock Oil Gas Corporation v. Sheets,
Decree affirmed, costs to be paid by appellants.
*1