1 Pa. Super. 41 | Pa. Super. Ct. | 1895
Opinion by
The plaintiff in this case filed a bill in equity in the court of common pleas, alleging the existence of a subsisting partner
The case was referred to a master, who, after taking testimony and carefully considering the same, found as matter of fact that no such partnership existed or had ever existed, and that the plaintiff was not entitled to an account, nor did he find any facts entitling the plaintiff to equitable relief. He found, however, as a fact, that a partnership did exist between the plaintiff’s husband and the defendant, and that said partnership was indebted to said plaintiff in the sum of $350, credited upon the books of the partnership as a contribution from the plaintiff to its capital stock, which the defendant had promised, if his partner assented, to secure, and recommended that a decree be entered, adjudging and decreeing that the defendant pay to the plaintiff the sum of $350, with interest from June 2,1890, and that the costs be divided between plaintiff and defendant. Exceptions were filed to this report by the plaintiff, but none by the defendant. The exceptions of the plaintiff were dismissed, and, before the entry of the decree by the court, the defendant formally objected to its being entered, on the ground that the court had no jurisdiction, and that “ a decree could not be entered for the payment of any demand cognizable in a court of law.” This objection was entered upon and made part of the record. The court overruled the objection, on the ground that it came too late; that the proper time to take advantage of lack of jurisdiction was upon exceptions to the report of the master, to be filed, in accordance with the rule, before him, and directed the terms of the decree recommended by the master to be carried out. From that decree the defend ant appealed to this court.
A single question is raised by the four several assignments of error made by the appellant, namely: Jurisdiction having-been properly assumed by the court of common pleas sitting in equity, and the testimony in the case, when heard and considered by a master, having failed to establish ground of equitable relief, but showing good ground for recovery in an action at
We are of opinion that the principles laid down in these cases are applicable to and practically govern this case. In Building Association’s Appeal, supra, Mr. Justice Woodward, delivering the opinion of the court, says : “ While the pleadings and the facts disclosed in the master’s report presented at least the frame of a case warranting the intervention of a court of equity, the decree was for the payment of a sum of money that could have been made the subject of a legal action. It was an entire departure from the theory on which the suit was based.” In Aid's Appeal, supra, Mr. Justice Williams, in delivering the opinion of the court, says: “The plaintiff stated a case in his bill that was cognizable in equity, but he failed to prove it. The master found against him on every averment on which his right to equitable relief rested. He was shown to be without equity, and for that reason the court was without jurisdiction or power to proceed, when it reached after a cause of action belonging.to a court of law, and not even suggested in the plaintiff’s bill, it was not adapting relief to a case properly before it, but usurping the jurisdiction of a court of law.”
The bill in the case which we are considering undoubtedly gave a court of equity complete jurisdiction, but the facts as found by the master as completely ousted its jurisdiction. It is clear that the defendant could not have demurred to the bill, nor would an answer averring lack of jurisdiction have availed him. He met every allegation of the bill in his answer. The master found every fact, which gave a court of equity jurisdiction, in his favor, and yet recommended a decree requiring him to pay to the plaintiff a sum of money, not only recoverable in a court
When the master recommended a decree which would compel the defendant to pay a sum of money which could be recovered only in a court of law, in a suit against the partnership of which the defendant was a member, he exceeded the power of a court of equity, and reached after a cause of action which was not within its control.
The cases referred to by the learned court below as justifying its refusal of the plaintiff’s formal motion, entered of record before the decree in this case was made, which motion was based upon the report of the master, that the court of equity has no jurisdiction, and that “a decree cannot be.entered for the payment of any demand cognizable in a court of law,” are those in- which it was apparent, on the face of the bill itself, that the question of jurisdiction was doubtful, and that therefore the defendant should have taken advantage of the lack of jurisdiction or of the doubt as to jurisdiction by demurrer.
In the case of Searight, Assignee, v. Carlisle Deposit Bank, 162 Pa. 505, the court below, upon whose opinion the case was affirmed, says: “ If the case were one clearly not cognizable in equity, or one in which equity forms were inadequate for the purposes of justice, we would feel bound to arrest, it even at this late stage, but no such conditions are presented. At most, it is only questionable whether the bill discloses a case for which no adequate remedy exists at law.” All of .the cases cited expressly recognize the right and, we may say, the duty of the court to arrest the proceedings at any stage of the cause, when lack of jurisdiction appears. So long as the clearly defined distinction between law and equity is maintained in Pennsylvania, we are bound to give to every party claiming them whatever rights or supposed rights he may be able to avail himself of in a court of law.
In Shillito v. Shillito, 160 Pa. 167, Mr. Justice McCollum
In the present case the question of jurisdiction is not doubtful. The report of the master very clearly indicates the remedy and the parties. The remedy is in a court of law; the parties should be Daniel C. Clous and D. Benton Silvis, trading under the firm name of Clous & Silvis. The defendant interposed his objection to the jurisdiction of the court practically at the first time at which it could be effectively made.
We are of opinion that the learned court below should have granted the defendant’s motion, refused to enter the decree recommended by the master and dismissed the bill. This upon general principles, from which we deem it dangerous to depart. The circumstances of this case are particular, and need not be recounted. It is desirable that litigation should cease, and we would be glad to stop it, if we could do so, consistently with the principles herein set forth.
Under all the circumstances of the case, we are further of the opinion that the costs in the court below should be paid as provided in tbe decree of that court, to wit: “ That Kate E. Silvis, the plaintiff, pay one half of the costs incurred, and that the defendant, Daniel C. Clous, pay the other half thereof.”
It is therefore adjudged and decreed that the decree of the court below be reversed, the report of the master set aside and the bill dismissed, the costs in the court below to be paid as hereinbefore indicated, and the costs of this appeal to be paid by the appellee.