27 Pa. Super. 122 | Pa. Super. Ct. | 1905
The plaintiff, a surety, having performed the contract of his principal, upon notice by the party entitled to performance, seeks reimbursement through subrogation to the principal’s claim to the contract price. Upon the case, as set forth in the bill, his right to this, in equity, cannot be doubted. The defaulting principal is the only party who questions this, and he sets up, also, a technical objection to the form of the notice to appear and answer, indorsed on the bill.
This notice requires the defendant to appear within fifteen days. As a notice to appear, this is in conformity with equity rule 4. It further requires him to answer within fifteen days. While, by rule 5, “ the plaintiff shall be at liberty to include in the rule to appear a further requirement to answer within thirty days,” such inclusion is not mandatory, but a separate rule to answer may be entered under rule 29. Whether, in the present case, the notice should be held sufficient as a notice to appear, and the residue treated as surplusage, it is unnecessary to decide.
At common law, the defendant’s appearance was necessary to give the court jurisdiction. Hence there could be no judgment against him until he had appeared; and his default
Irrespective, however, of this appearance, the case presents at an earlier date an appearance by the defendant in another form. If, by the most liberal relaxation of practice, we could so far dispense with the requisites of a conditional appearance as tó regard the defendant’s motion to dismiss the bill, November 4, 1903, as such an appearance, with respect to the first reason assigned, the second reason gives it a wholly different character. The motion on a conditional appearance must be directed only to some formal defect in the bill or irregularity in the service, with nothing by way of defense on the merits. If it presents anything in the nature of a reply to the matters contained in the bill, it goes beyond the scope of a conditional appearance, and implies submission to the judgment of the court on such reply. It thus operates as an appearance to the action, and also as an answer or demurrer, according to the nature of the reply, and hence as a waiver of any formal defect in the bill or defect in the service. Here the second reason assigned is in effect a demurrer, and looks to the determination of the cause on the merits as appearing from the bill. Hence it operates as a submission to the jurisdiction of the court in the premises, and cures the defect in the notice alleged in the first reason: Jeannette Borough v. Roehme, 197 Pa. 230; Brinton v. Hogue, 172 Pa. 366; Hughes v. Antill, 23 Pa. Superior Ct. 290. And since the defendant is thus
Though the bill appears to have been dismissed by the court below on the merits, as well as on the defect, in the notice, and both have been argued on this appeal, we can express no opinion respecting the merits, further than was intimated at the outset, until after final hearing and decree on Such defense as the defendant McCafferty.may choose to make.
The decree is reversed, and the bill and injunction are reinstated at the costs of the appellee. And it. is further ordered that the cause proceed in the court below as provided by the equity rules on the overruling of a demurrer.