170 Pa. 14 | Pa. | 1895
Opinion by
There has been a lack of uniformity in the decisions in this state upon the question whether the hearing and dismissal of a motion for equitable relief in a court of law will preclude a
The case of Wistar v. McManes, 54 Pa. 318, in which it was held that the refusal of a court to open a judgment on the ground of usury did not preclude the defendant from coming into equity for an injunction, virtually overruled Gravenstein’s Appeal, 49 Pa. 310, where the refusal of a court of law to set aside a judgment on the ground of fraud was said to preclude the defendant from coming into equity.
The decision in Wistar v. McManes, supra, is in harmony with the doctrine that a purely equitable defense, which could not be considered in a legal forum, although made and overruled at law, is ground for an injunction, but it overlooks the fact that in this state a court of law can consider every equity set up. Referring to this decision the learned editors of Leading Cases in Equity in the notes to the Earl of Oxford’s Case, vol. 2, part 2, p. 1364, say: “ The decision is more significant because the courts of Pennsylvania exercise an equitable jurisdiction under the forms of law, and may afford relief against a judgment for any cause that would be available before a chancellor.” In Mitchell on Motions and Rules at Common Law, p. 78, it is said: “The rule to open judgment and let the defendant into a defense is peculiar to Pennsylvania practice, and is a clear example of our system of administering equity under common law forms.” The learned author, in referring to Wistar v. McManes and the act of 1877 giving the right to appeal from the refusal to open a judgment, says : “ The effect of this statutory extension of the remedy by rule on the question of barring a subsequent bill in equity for the same matter and consequently on the practice, cannot perhaps be safely predicted.” In 1879, the same year in which this was written, Gordinier’s Appeal, 89 Pa. 528, was decided, in which
In Frauenthal’s Appeal, 100 Pa. 290, a decree had been entered in the common pleas enjoining the proceedings to collect a judgment after the discharge of a rule taken for the same purpose. In the opinion reversing the decree both Wis-tar v. McManes and Gordinier’s Appeal are discussed, and it is said: “ If we adhere to the last decision of the court it is fatal to the bill. Why should we not so adhere ? Under our system of jurisprudence the courts of common law have full equity powers. Many of them may be invoked either by motion and rule or by bill. In those cases where it is optional for a party to elect in which manner he will apply for the exercise of those equitable powers and he does so elect, and the court with full power to grant the desired relief after full hearing refuses it, why should not such a decision be conclusive? ”
The bill filed in this case and the petition for a rule to open judgment rest upon the same allegations of fact. They are remedies of which the defendant had her choice, and having failed in one she has resorted to the other without showing any ground for relief from the effect of the decision against her, which on principle and authority must be held to be conclusive.
In its other features the bill is, as stated by the learned judge of the common pleas, an ejectment bill, and a bill for specific performance without a tender of the balance of the purchase money or the statement of an adequate reason for the failure to do so.
The decree is affirmed at the cost of the appellant.