144 Pa. 489 | Pennsylvania Court of Common Pleas, Philadelphia County | 1891
Opinion,
This bill is for an account of the firm of C. B. & G. A. Miller. The partnership was formed in November, 1878, and continued until the decease of Charles B. Miller, who died November 13, 1884. Grace M. Coffman is the surviving executrix of his last will and testament. G. A. Miller, the surviving partner, died January 12,1888, and letters testamentary on his will were issued to W. W. Weigley.
No settlement of the partnership affairs was had in the lifetime of Charles B. Miller. After his death, however, George A. Miller, the surviving partner, filed his bill for an account in the Court of Common Pleas No. 3 of Philadelphia, setting forth .that at .the death of said Charles B. Miller the clear profits amounted to a sum not less than $35,000, which should be equally divided, and that the said Charles B. Miller at his decease had in his hands the sum of $16,000.61 which was due and owing to him; that no settlement had yet been made;
The surviving partner, as he alleges, thereupon settled up the outstanding accounts, and prepared a statement of the affairs of the firm, which exhibited an indebtedness to him of $16,000.61 by the estate of Charles B. Miller, deceased. This claim he presented to the executrix of the estate of Charles B. Miller, deceased, who refused to pay the same. He then, on the eighth of January, 1886, filed in the Common Pleas No. 1 of Philadelphia a second bill for an account, to which the defendant again demurred, and as cause for demurrer assigned the want of jurisdiction in the Common Pleas to give the relief prayed for. On the 19th of June, 1886, the court, being of opinion that the jurisdiction was exclusively in the Orphans’ Court, sustained the demurrer and dismissed the bill, with costs.
The executrix of Charles B. Miller, deceased, having filed her account on the twenty-eighth of December, 1885, George A. Miller accordingly went into the Orphans’ Court, when it was called for audit, and presented his claim for $16,000.61, al
Pending an appeal from the Orphans’ Court, the appellant in this case filed the bill now under consideration, to which the appellee pleaded res judicata, setting up the dismissal of the bill in the Common Pleas No. 1 as a bar to the present bill. To this the appellant replied that the bill filed in Common Pleas No. 1 was dismissed solely for want of jurisdiction in the said court, and not upon the merits. As the cause is here for argument upon the bill, answer, and replication, the facts set forth in the replication must be assumed; and that the fact thus assumed is true, appears from the action of the court upon the motion to amend: Weigley v. Coffman, 23 W. N. 27.
Judgment upon a point, not touching the merits of the principal matter in dispute, will, in respect of that point, ordinarily raise an estoppel. “ The parties and their privies will be precluded from asserting the contrary of the fact found in such judgment. Thus, dismissal of a suit for want of jurisdiction will estop the plaintiff from alleging, after the expiration of the statute of limitations, that he had begun suit (no other one having been undertaken) within the proper time; and, indeed, it appears to be true, as a general proposition, that where a party succeeded in defeating an action by his pleading, by motion, or the like, he cannot defeat a second action, by taking a position inconsistent with that taken in the first: ” Bigelow on Estop., 53. At the hearing of the bill in Common Pleas No. 1, the appellee demurred, assigning want of jurisdiction in the court. She now contends, and seeks to dismiss the plaintiff’s bill, upon the plea of res judicata, upon the alleged ground that the court had jurisdiction. This is an inconsistency which cannot be allowed. It is a matter of no consequence in this case that the Court of Common Pleas No. 1 in fact had jurisdiction; that court decided otherwise, and refused to exercise its jurisdiction. It is true that an appeal might have been taken, but none was taken, and the decision against the jurisdiction in consequence became the law in that particular case; but, as the decision was not upon the merits, and did not determine the plaintiff’s title to relief under the bill, it was not, according to all the cases, a bar in another suit.
The determination of the question of jurisdiction is but preliminary to the consideration of the case on its merits. A
The decree of the Common Pleas is reversed, at the costs of the appellees, and the record is remitted for further proceedings.