author: Harvey, J.,

text:
    Havens et al. v. Graybill et al.

      Corbett & Rugh and John M. Myers, for plaintiffs.

      A. A. Geary, for defendant, Charles Graybill.

      Frampton & Courtney, for defendant, United Natural Gas Company.
    May 5, 1930.
   Harvey, J.,

This is a proceeding instituted by plaintiffs for judgment under the provisions of the Uniform Declaratory Judgments Act of June 18,1923, P. L. 840, naming Charles Graybill and the United Natural Gas Company defendants. The jurisdiction of this court in the action as brought was questioned preliminarily, and in an opinion filed thereon Aug. 29, 1929, we held that under the provisions of the act jurisdiction was given in the case, and hearings were proceeded with.

The original petition of plaintiffs contains 13 paragraphs, to the first and eighth of which amendments were made, setting forth, in substance, as follows:

1. Names and residences of petitioners (the names and residences of additional persons, namely, Cecelia Carley, No. 101 Jefferson Street, Oil City, Pa., and Stanley Carley, by his mother and next friend, No. 101 Jefferson Street, Oil City, Pa., allowed by amendment filed).

2. Names and residences of defendants.

3. That all the plaintiffs and defendants are of full age and sui juris.

4. Ownership on or about April 9,1900, of John W. Graybill in and to a certain tract of land in Millcreek Township, Clarion County, Pennsylvania, containing 66.2 acres, more or less, with description and boundaries thereof set out.

5. Conveyance by John W. Graybill of said premises (set out in paragraph 4 above) to Charles Graybill, by deed dated April 9, 1900, recorded in Clarion County, Pa., records, D-. B. vol. 69, page 88.

6. Provision in deed from John W. Graybill to Charles Graybill, referred to in paragraph 5, as follows: “The said grantor hereby reserves for himself all the oil and gas premises with right of ingress, egress, over and through the said land as may be required to remove said oil and gas from said lands and when lease expires now in force the said Charles Graybill is to have full control of the re-leasing of said premises.”

7. Memorandum of lease from Charles Graybill to J. A. Timlin for oil and gas purposes on tract in question dated July 28, 1904, recorded in Clarion County records, Lease and Agreement Book, vol. 19, page 374.

8. Death of John W. Graybill, Sept. 10, 1904, intestate, with names of children surviving, and names of deceased children and their children, respectively (the names of Cecelia Carley and Stanley Carley, widow and son of Chester Carley, deceased, who was a son of Ada Carley, a daughter (deceased) of John W. Graybill, added by amendment filed). The names of the wives and children of the sons of John W. Graybill, James Graybill and William Graybill, who died subsequent to the death of their father, John W. Graybill.

9. Memorandum of lease from Charles Graybill to the Tri-County Natural Gas Company of the premises in question for oil and gas purposes. Lease dated Sept. 25, 1911, recorded in Clarion County records, Lease and Agreement Book, vol. 26, page 283.

10. Memorandum of lease from Charles Graybill to Samuel Wilson of the premises in question for oil and gas purposes by lease dated Dec. 28, 1916, recorded in Clarion County records, Lease and Agreement Book, vol. 39, page 81, assigned by Samuel Wilson to the United Natural Gas Company under date of March 13, 1917. Assignment recorded in Clarion County records, Lease and Agreement Book, vol. 39, page 79.

11. Drilling of a well producing gas in paying quantities by the United Natural Gas Company upon the premises in question from which Charles Graybill has received royalty, in addition to a large amount of land rental or delay rentals from the several leases upon the premises, none of which has been distributed to the other heirs of John W. Graybill, although repeatedly requested to do so.

12. Provision in deed set out in paragraph 6 above constitutes an exception of the oil and gas rights by John W. Graybill, and that said oil and gas rights descended to and became vested in the heirs of John W. Graybill at his death, which Charles Graybill and the United Natural Gas Company deny, thus raising a material dispute as to the rights of the parties in the oil and gas rights and in the proceeds therefrom, in the following respects, and with respect to the following rights, status and legal relations now existing between the parties, plaintiffs and defendants, respectively, herein, upon which the court is asked to pass judgment, viz.:

(A) Whether the provision in the deed from John W. Graybill to Charles Graybill, quoted in paragraph 6 above, created a reservation for the life of the said John W. Graybill or an exception out of the grant, and whether title to the said oil and gas and oil and gas rights remained in the said John W. Gray-bill and at his death vested in his heirs.

(B) If the court determines the said provision to be an exception of the oil and gas and gas and oil rights from the grant aforesaid, whether or not the power of the said Charles Graybill to lease the said premises for oil and gas purposes ceased at the death of the said John W. Graybill.

(C) Whether or not the lease granted by the said Charles Graybill subsequent to the death of John W. Graybill, viz., the lease from Charles Graybill to the Tri-County Natural Gas Company dated Sept. 25, 1911, recorded in Clarion County Lease and Agreement Book, vol. 26, page 283, marked Exhibit “C,” and the lease from Charles Graybill to Samuel Wilson dated Dec. 28, 1916, recorded in Clarion County Lease and Agreement Book, vol. 39, page 81, assigned to United Natural Gas Company by assignment dated March 31, 1917, recorded in Lease and Agreement Book No. 39, page 79, marked Exhibit “D,” are valid leases.

(D) Whether Charles Graybill is the real owner of the said oil and gas and oil and gas rights and entitled to all of the proceeds from the same, or whether all the heirs of John W. Graybill are the owners of the said oil and gas and oil and gas rights and are entitled to all the proceeds from the same.

(E) Whether the United Natural Gas Company is the real owner of the gas well drilled on the Graybill farm by the said United Natural Gas Company under the lease and assignment above mentioned; whether all of the heirs of the said John W. Graybill are the real owners of the said gas well.

13. That by reason of the controversies, the rights, status and legal relations of the parties to the action ought to be determined and adjudicated by the court.

To which the defendants, respectively, answer, in substance, as follows, to wit:

Charles Graybill—

1. That the court is without jurisdiction in the premises.

2. That petitioners have a present adequate and complete remedy at law for the determination of all the questions arising under their petition.

3. That upon a proper action of ejectment, also upon a proper action of accounting, all the matters raised by the petition can be fully determined.

4. Certain persons in interest, descendants from John W. Graybill, are not named among the petitioners.

5. Ownership by Charles Graybill of oil and gas rights in the premises by virtue of deed from John W. Graybill to respondent, Charles Graybill, described in paragraph 5 of the petition.

United Natural Gas Company—

1. That the court is without jurisdiction in the premises.

2. That petitioners have a present, adequate and complete remedy at law for the determination of all the matters alleged in petition to be at variance between them and respondents.

3. Denying the right of petitioners to resort to the statute invoked in this proceeding, avers that by action of ejectment and by action for mesne profits all the matters set out in said petition to be in dispute and in controversy can and ought to be fully, properly and orderly determined.

4. All parties in interest have not been named and included as parties to the proceeding, and under such status a full and complete settlement of matters alleged to be in controversy could not be had, and, therefore, the petition and all proceedings thereon should be dismissed.

5. In event said petition and proceedings are not dismissed, this respondent admits the facts set forth in paragraphs 4 and 5 of petition, and says that by deed mentioned in said paragraphs 4 and 5 John W. Graybill conveyed to Charles Graybill the premises described in said deed and all estates therein, subject to certain restrictions, conditions and limitations therein, designated in said deed as reservations, during the lifetime of John W. Graybill, and that said reservations are now fully ended and terminated by reason of the death of John W. Graybill on Sept. 10, 1904, whereupon Charles Graybill became invested with absolute ownership of said land and all estates therein and the absolute control thereof.

6. For answer to paragraph 6 of said petition, this respondent refers to deed mentioned in its entirety, and further says that the copy of said deed attached to petition and identified as Exhibit “A” is not a true copy thereof.

7. Averments in paragraph 7 admitted, but denies that there is any liability attaching to it by reason of said averments or the lease there mentioned.

8. Answering paragraph 8, reference is made to paragraph 4 hereof.

9. Averments of paragraph 9 admitted, but any liability attaching to it by reason of said averments or the lease there mentioned denied.

10. Averments of paragraph 10 are admitted, and avers that said premises became vested in this respondent for the purpose of mining and operating for oil and gas thereon under the lease identified as Exhibit “D” and assignment thereof to it. Further averring that Exhibit “D” as attached to said petition is not a true copy of the instrument so identified. Also, further, that Clara Wing Havens, one of the plaintiffs, by writings addressed to this respondent, has confirmed said lease and acknowledged and admitted the said Charles Graybill has the full control of the leasing of said premises.

11. Answering paragraph 11 of petition, respondent says it drilled and completed a well upon premises leased, Exhibit “D,” and that said well has produced, and now is producing, gas in commercial and paying quantities. That prior to the drilling of said well it paid rental under the terms of lease for the delayed completion of a well on the said premises to the lessor, and that after the drilling and completing of said well it paid the royalty for the gas from said well as provided for in said lease until it was notified on Feb. 14, 1928, by written notice from counsel for Clara Havens to pay no more land or well rentals pending a determination of the rights of the owners of the oil and gas premises, the subject of the lease, after which it made no further payments on account of said lease, although ready and willing to do so. Denies that there is any liability on it to the plaintiffs for the moneys so paid to its lessor, Charles Graybill. Further avers that said notice was in effect a confirmation and ratification of said lease and recognition of the validity thereof by said Clara Havens. Also, that averments in paragraph 11, to which respondent makes no answer, are matters of which it has no knowledge and cannot answer the same, and denies materiality thereof as to it.

12. Answering paragraph 12 of petition, denies that John W. Graybill made an exception of the oil and gas and oil and gas rights in deed mentioned in said paragraph. Makes reference to said deed in its entirety for the true intent of the parties "to said deed and the proper construction thereof, averring that by such reference the intention of the parties is shown to be the imposition of certain restrictions, conditions or limitations of said premises during the lifetime of said John W. Graybill which are in said deed designated as reservations and are intended so to be by the parties and are to be so construed, referring to paragraph 5 of its answer.' Further avers that the well now drilled on said premises was drilled under the lease or agreement made between Charles S. Graybill and Samuel Wilson, dated Dec. 28, 1916, and assigned to this respondent, and that said lease is a valid contract and binding upon the premises; the said Charles Graybill had full control of said premises for the leasing thereof for oil and gas purposes, and that no other person or persons then had or now have any authority or control over the leasing of said premises for oil and gas purposes. Further, that even if it should be determined that by deed in question between John W. Graybill and Charles Graybill it was intended that the oil and gas on said premises were by said deed excepted out of the operation of said deed and remain in the said John W. Graybill and his heirs, the power and authority given to Charles Graybill and vested in him by said deed to have full control of the re-leasing of said premises continues in the said Charles Graybill because of his interest in the premises so conveyed, including the oil and gas aforesaid, and said power and authority did not cease at the death of John W. Graybill. Further, that Harry Graybill and Mrs. Grace Miller, plaintiffs and petitioners, each had notice and knowledge at the time of the operations on said premises for oil and gas at large expenditure of money by the respondent, and at no time during said operations, or since, did either Harry Graybill or Mrs. Grace Miller make or assert any claim or objection to or against this respondent, or against its interest or estate in said premises, nor against the right of respondent to carry on and conduct said operations, such as is now set forth by them in said petition, until the filing of said petition in this proceeding, and, therefore, by reason thereof, said Harry Graybill and Mrs. Grace Miller are, and in equity ought to be, estopped to deny now any rights to respondent in said premises under said lease or to deny the estate of respondent thereunder in the oil and gas in and under said premises.

We are requested by Charles Graybill in a written instrument filed in the proceedings to find as follows, viz.:

1. The court has no jurisdiction in the present form of action.

2. It was the intention of John W. Graybill, the grantor in said deed of conveyance, to convey to Charles Graybill the premises described in said conveyance, but to reserve therefrom the following:

(a) One room in house on said premises for his personal occupancy.

(b) The proceeds of the oil and gas from lease then on said premises as long as the said John W. Graybill lived, providing the said lease be so long in force.

3. In the event that the lease in force at the date of the deed should end and be determined prior to the death of John W. Graybill, the grantee in said deed had the right to re-lease the said premises for oil and gas purposes upon such terms as the said grantee might determine, and also the right to receive the rents, issues and profits therefrom.

The jurisdiction of the court over the action in its present form was first raised by, and renewed in the request of, Charles Graybill, defendant, in his request for findings filed April 8, 1930. To this we filed an opinion and ruling Aug. 29, 1929, holding that the Act of June 18, 1923, P. L. 840, known as the Uniform Declaratory Judgments Act, by its provisions gives the court jurisdiction over the instant case. To this opinion and ruling we adhere. The answers to this point raised in answer 1, 2, 3 and 4 of Charles Graybill and United Natural Gas Company, respectively, to petition will be listed in order in “Conclusions of Law” hereinafter.

The questions pertinent to the issue to be conclusively determined are as follows, and once the primary questions are properly determined all else should be readily adjusted. The primary questions are these, viz.:

1. The character of the provision in the deed from John W. Graybill, dated April 9, 1900, to Charles Graybill as to the oil and gas rights, whether: (1) a “reservation” or an “exception;” (2) if an exception, whether title to the oil and gas rights remained in John W. Graybill and at his death vested in his heirs.

2. If concluded to be an “exception,” whether or not the power of the said Charles Graybill to lease the said premises for oil and gas purposes ceased at the death of John W. Graybill.

3. Whether the lease mentioned in paragraph 7 of the petition is still a valid lease.

4. Whether the leases made by Charles Graybill (C. S. Graybill) subsequent to the death of his father, John W. Graybill, were and are good and valid leases for oil and gas purposes on the premises, viz., lease dated Sept. 25,1911, Charles Graybill to Tri-County Natural Gas Company, and lease dated Dec. 28, 1916, Charles Graybill to Samuel Wilson, assigned to United Natural Gas Company.

5. Whether Charles Graybill is the real owner of the oil and gas and oil and gas rights, and entitled to all the proceeds from the same, or whether all the heirs of John W. Graybill are the owners of the said oil and gas and oil and gas rights, and are entitled to all the proceeds from the same.

6. Whether the United Natural Gas Company is the real owner of the gas well drilled on the Graybill land by the said United Natural Gas Company under the lease from Charles Graybill to Samuel Wilson dated Dec. 28, 1916, assigned to the United Natural Gas Company, or whether all the heirs of the said John W. Graybill are the real owners of the said gas well.

John W. Graybill, late of Millcreek Township, Clarion County, Pennsylvania, at one time owned a tract of land in said Millcreek Township containing 66.2 acres, more or less. The land was leased for oil and gas purposes. His wife died in the year 1895. Under date of April 9, 1900, he made, executed and delivered a deed for the said tract of land to his son, Charles Graybill, in which the consideration named was $1000. In the said deed is the following:

“The premises conveyed for the price stipulated therein with the following reservations:

“1. That the said Charles Graybill, grantee herein named, is hereby enjoined from conveying the within described premises during the lifetime of John W. Graybill, the grantor herein named, unless the consent of the said grantor be first had and obtained in writing, or John W. Graybill, the said grantor joining in said deed of conveyance, and the said John W. Graybill reserves one room in the house on said premises and the said Charles Graybill to board said John W. Graybill while he lives or while he remains with the said Charles Graybill.

“2. The said grantor hereby reserves for himself all the oil and gas premises with right of ingress, egress over and through said land as may be required to remove said oil and gas from said lands, and when lease expires now in force, the said Charles Graybill is to have full control of the re-leasing of said premises.”

John W. Graybill died Sept. 10, 1904, intestate, leaving to survive him six children. There is no record of any lease referred to in the deed dated April 9, 1900, as “now in force,” nor any record of operations thereunder upon the premises. We must presume it expired before July 28, 1904, the date of the lease made for oil and gas purposes on the said land by Charles Graybill to J. A. Timlin, recorded in Clarion County records, Lease and Agreement Book, vol. 19, page 374. In this lease Charles Graybill exercised the powers granted to him in the deed of April 9, 1900, namely, “full control of the re-leasing of the said premises.” His father was still living. Charles Graybill was made lessor in the lease. All royalties and rentals were made deliverable and payable to him. This lease determined under its own terms. Under date of Sept. 25,1911, Charles Graybill again leased the premises for oil and gas purposes to the Tri-County Natural Gas Company. In this lease he was named sole lessor, and all royalties and rentals were made deliverable and payable to him. This lease, too, determined under its own terms. Under date of Dec. 28, 1916, Charles Graybill again leased the said premises for oil and gas purposes to Samuel Wilson. Samuel Wilson assigned the lease to the United Natural Gas Company, defendant named herein. In this lease Charles Gray-bill appeared as sole lessor, all rentals and royalties to be paid and deliverable to him, with a provision that “if the lessor does not have title to all the oil and gas in the leased premises there shall be refunded such part of all payments made by the lessee hereunder as shall be proportionate to the outstanding title, and payments thereafter to be made shall be reduced in the same proportions.”

Under the terms of this lease the United Natural Gas Company paid to Charles Graybill delay rentals until the completion of a well drilled on the premises in December, 1926, after which time royalty was paid to him until on or about Feb. 14, 1928, when notice was given it to pay no more rentals, pending a determination of the rights of the owners of the oil and gas premises, the subject of the lease.

The most vital question to be determined is the character of the “reserve” as to the oil and gas premises with rights incident, contained in deed from John W. Graybill to Charles Graybill dated April 9, 1900.

In the opinion of President Judge Rice, in Corey v. Edgewood Borough (No. 1), 18 Pa. Superior Ct. 216, 222, is embodied the rule of construction pursued in this state as well as many other states, to be followed in this case:

“The primary rule of construction applicable to a clause in a deed in the form of an exception or reservation is to gather the intention of the parties from the words by reading, not simply a single clause, but the entire context, and where the meaning is doubtful, by considering such circumstances as they are presumed to have considered. . . . True, there is an ancient maxim that a deed or grant must be construed most strongly against the grantor, and it has been said, that this applies with equal force to a reservation or restriction in a deed whereby there is a withholding of something from the grant, but it is also true that the rule is to be applied only when, by the ordinary rules of construction, the instrument leaves the intention of the parties in doubt. If the language of the instrument is free from ambiguity, if it is sufficiently clear to define the character and extent of the reservation, the rule which resolves all doubt against the grantor, because the words of the deed are his, can have no application. The rule does not require the court to take up the construction of the instrument with a mind hostile to the right claimed by the grantor and apparently reserved in his deed. ‘It may be conceded when the language making an exception or reservation in a deed is doubtful, it should be construed more favorably to the grantee. It is only when it is doubtful that this rule can be applied.’ ” See, also, 18 Corpus Juris, § 350, page 346.

Following this rule, our first duty is to seek the intention of the parties from the circumstances and conditions surrounding them at the time the deed was made. From what is before us we see John W. Graybill, a man past eighty years of age; wife dead; children grown; some married and gone to homes of their own; possessed of a farm on which is located his “home.” He desires to retain a residence in the former home house with assurance that he may have it while he lives, unless it is agreeable to him and he consents that the property may be sold by his son Charles, to whom he sells it upon conditions ; he “reserves” one room in the house (no particular room specified) ; his son Charles shall “board” him while he lives or while he remains with the said Charles Graybill, his son, to whom he sells the farm. There is no doubt whatever that the predominating thought in the mind of John W. Graybill was an assured place of residence and an assured maintenance as to food and care incident to “boarding” during his lifetime. What property, .real or personal, he might have possessed does not appear. All we know is the consideration of $1000 noted in the deed. Does the thought for his own particular welfare still predominate when it comes to the matter of the oil and gas and rights incident thereto? Does the language of the second clause of the “reservation” constitute a reservation or an “exception?” It is not the technical term “reservation” or “exception” which rules. It is what the intention of the grantor was at the making of the instrument that fixes the character of the provision.

“Exceptions and reservations differ in legal effect, but in their creation there is no magic in words, and if the meaning is clear either expression will operate for the purpose designed.

“Though apt words of reservation be used in a deed, they will be construed as creating an exception, if such was the design of the parties ascertained from the entire instrument:” Mandle v. Gharing, 256 Pa. 121.

After careful consideration, weighing the several provisions as to the object sought by John W. Graybill in the so-called “reserves” in the deed, we are constrained to believe that the provisions were intended to provide for the direct, personal welfare of John W. Graybill during his lifetime, this including the provision as to oil and gas in the second clause of the reservation. We are further brought to this conclusion as to clause 2 in the deed from the wording thereof. Not unmindful that with an “exception” no words of inheritance are necessary, the estate “excepted” never having gone out of the grantor, what was in the mind of John W. Graybill at the moment he was providing for his own personal welfare at the time of drawing the deed of April 9, 1900? Was it not an assurance of his own bodily comfort and care during his life? In the first clause that is clear and explicit. In the second clause he “reserves,” in effect, any income from the oil and gas from the premises then under lease for purposes of operating the same until such lease expires. For whom? “For himself.” We would not be thought to be splitting a hair “betwixt the north and northwest side,” but right here is the crux of the matter. If he, in clause 2, had omitted “for himself,” or even had made it “to himself;” had omitted reference to any “lease now in force” (if an “exception,” whether there was a lease for the oil and gas or not would be immaterial) ; had not given to Charles Graybill, the grantee in the deed, “full control of the re-leasing of the premises” for oil and gas, “a power as large as the grant,” we would hold the second clause as an “exception,” but, inasmuch as we construe “for himself” to be intended to mean “during the lifetime of John W. Graybill” as contained in clause 1 with respect to the conveying away of the premises sold and granted to Charles Graybill by deed of April 9, 1900, upon which are predicated the “reserves” in clauses 1 and 2; that reference to the “lease now in force” from which an income was doubtless received was specially mentioned; and that an unrestricted control over the oil and gas, and rights incident, co-equal with and as large as the grant in the deed was, on the expiration of the lease then in force, definitely vested in Charles Graybill, we must conclude that the so-called “reserves” in the deed, clause 2, was not an “exception” of the oil and gas and oil and gas rights in the grant from John W. Graybill to Charles Graybill under deed of April 9, 1900, but, with the “reserves” in clause 1, a condition to the grant.

So concluding, discussion upon other questions is unnecessary.

Our conclusions of law, answering the requests for findings made by Charles Graybill, will cover the salient questions raised in the petition, viz.:

Conclusions of law.

1. That this action as instituted under the Uniform Declaratory Judgments Act of June 18, 1923, P. L. 840, is cognizable by this court in its present form, the provisions of said act giving jurisdiction therein and thereon.

2. That from consideration of the entire deed, it was the intention of John W. Graybill to convey to Charles Graybill by deed of April 9, 1900, the fee in the premises, subject to the conditions, termed “reserves,” in the deed during the lifetime of the grantor, John W. Graybill, and at his death, the conditions being fulfilled, the fee to vest in Charlés Graybill.

3. No questions being raised that the conditions in the deed were not fulfilled, the said John W. Graybill dying in the residence house on the premises, we must presume, and so conclude, that the several conditions in the deed were fulfilled.

4. That all leases for oil and gas purposes made by Charles Graybill on and subsequent to July 28, 1904, were valid leases.

5. That leases for oil and gas purposes from Charles Graybill to J. A. Timlin, July 28, 1904, and from Charles Graybill to Tri-County Natural Gas Company, Sept. 25, 1911, are extinct as leases upon the Graybill lands. That the lease for oil and gas purposes from Charles Graybill to Samuel Wilson, Dec. 28, 1916, assigned by Samuel Wilson to the United Natural Gas Company, is a valid and subsisting lease.

6. That Charles Graybill is the real owner of the gas and oil and oil and gas rights, subject to the lease now held by the United Natural Gas Company, and is entitled to all the proceeds from the same.

7. That the United Natural Gas Company is the real owner of the gas well now drilled on the Graybill lands under the lease from Charles Graybill to Samuel Wilson, Dec. 28,1916, assigned to the United Natural Gas Company.

Decree.

' And now, May 5, 1930, after hearing testimony, the arguments of counsel and examination of cases cited in briefs filed, upon due consideration, for the reasons stated and conclusions of law hereinabove contained, it is ordered and adjudged that Charles Graybill took title to the lands conveyed by deed of John W. Graybill to Charles Graybill dated April 9, 1900, recorded in Clarion County records, Deed Book, vol. 69, page 88, including the oil and gas estate in the premises, subject to certain conditions contained in said deed to run during the lifetime of grantor; that upon the death of John W. Graybill, Sept. IQ, 1904, the conditions in the deed being fulfilled, title in fee simple in said premises vested in Charles Graybill.

That the lease for the purpose of operating for oil and gas upon the premises given by Charles (C. S.) Graybill to Samuel Wilson under date of Dec. 28, 1916, assigned by said Samuel Wilson to the United Natural Gas Company, recorded in Clarion County records, Lease and Agreement Book, vol. 39, page 79, was, and is, a good and valid lease- for the purposes contained therein; and that Charles (S.) Graybill, lessor, is entitled to all the rentals and royalties accrued and accruing under the terms contained in said lease.

That the well drilled upon the premises by the United Natural Gas Company now producing gas is the property of the said United Natural Gas Company.

That the plaintiffs pay the costs of these proceedings.

From Merritt H. Davis, Clarion, Pa.


source: Caselaw Access Project

author: Dom, J.,

license: Public Domain

text:
    Commonwealth v. Mochnaly et al.

      John G. Gaut, Assistant District Attorney, for Commonwealth.

      Smith, Keenan & Smith, for defendants.

      Paul J. Abraham, for county controller.

      Marker & Rial, for County of Westmoreland.
    Jan. 22, 1930.
   Dom, J.,

At the common law the Crown paid no costs; defendants were liable for costs whether acquitted or convicted, but this liability has been modified by statute.

At the common law, so far as we know, and we have been cited to no authority which holds the contrary, no provision was made for the costs where a bill of indictment was quashed.

May we not safely say, therefore, that the liability of the county for costs in any situation is entirely statutory, and that if costs on a quashed bill are to be imposed upon a defendant we must find authority for so doing in the statute.

Any person claiming costs must point to a statute covering his demand; all demands for the payment of costs are likewise dependent upon statutory direction, and because such payment is in its nature penal, the statute will be strictly construed — it must be interpreted rigidly.

The question of costs in the enumerated cases comes before us for decision upon a case stated; the facts in all the four cases are similar.

The question involved is: “Are defendants who have been acquitted by a traverse jury with instructions to pay costs upon a second indictment which was framed and presented upon the original information required to pay all costs accruing upon the first indictment which was quashed?”

The chronological history of the cases is given in the statement.

At the May Term, 1928, on May 9th, true bills were returned by the grand jury; at the August Term, 1928, on Sept. 4th, the cases were called together for trial, and, upon motion of defendants, the indictments were quashed for matter of form; on Oct. 17, 1928, in the August Term, 1928, upon motion of the district attorney, leave was given by the court to present to the next grand jury new bills of indictments; on Nov. 15, 1928, said new bills were presented in the November Term, 1928, to the grand jury and were returned by it to the court as true bills; at the February Sessions, 1929, defendants, upon the aforesaid second indictments, were tried and the verdicts were “not guilty but pay costs.”

The controversy arises about the costs on the quashed bills, the Commonwealth contending that all of the costs for the entire proceedings are chargeable to the defendants, while the defendants contend that they are not liable for the costs on the quashed bills.

The Commonwealth contends that since the second indictments were framed upon the original information the first should attach to the second and the whole costs should be paid by the defendants. We cannot see that; we can see no power in the jury trying the defendants on the second bills to dispose of the costs that had accrued on the first. We are cited to the case of Richards v. Clearfield County, 16 Pa. C. C. Reps. 227. The facts of that case are not altogether similar to ours — it has nothing to do with costs chargeable to a defendant — and it is our opinion that the court went a great distance in even fixing liability on the county.

Counsel for the Commonwealth is of opinion that the witnesses and the constables should be paid their costs without regard to which set of bills the costs were incurred upon. And he further insists that the costs were regularly incurred, that the witnesses were necessary for the trial of the cases, and that they spent their own money for the purpose of coming to court, etc., and should be reimbursed.

We are urged to decide this case against defendants in order that the witnesses and officers be paid, but the only effect this consideration could have upon us might be to insensibly influence the construction of the statutes; because, after we construe the statutes, our conclusion as to them must prevail, the supposed hardships being a matter then wholly out of our power. The legislature is the real place to present such an appeal for remedial legislation ; it has doubtless full power to legislate as to costs on quashed bills.

However one may view such an argument, and it is our business to do full justice under the law, we believe that it is better that both witnesses and officers collectively should contribute than that all the charges should be unlawfully and unjustly imposed upon “not guilty” individual defendants.

We have given this matter our painstaking attention; we have examined all the laws and many decisions of both the higher and lower courts, and it is our opinion that the defendants are not chargeable with the costs on the quashed indictments. We can find no statute covering the demands of the Commonwealth.

It has not been argued that before the Act of March 81, 1860, P. L. 427— and it could not well be after a review of the early decisions — defendants were obliged to pay the costs on quashed bills. Has said act changed their status? Section 62 thereof reads as follows:

“In all prosecutions, cases of felony excepted, if the bill of indictment shall be returned ignoramus, the grand jury returning the same shall decide and certify on such bill whether the county or the prosecutor shall pay the costs of prosecution; and in all eases of acquittals by the petit jury on indictments for the offenses aforesaid, the jury trying the same shall determine by their verdict whether the county, or the prosecutor, or the defendant, shall pay the costs, or whether the same shall be apportioned between the prosecutor and the defendant, and in what proportions: . . .”

It will be noticed that the section says nothing about quashed bills. If we are correct in our former conclusion that before costs may be imposed upon a defendant on a quashed bill we must have statutory authority, and bearing in mind that the said act must be strictly construed, can it be successfully urged upon us that the said act has changed the status? We think not, and we have reached this conclusion after mature reflection; we cannot see that the Act of 1860 aforesaid has made any change.

The Commonwealth also relies, and perhaps chiefly relies, upon the Act of May 19, 1887, P. L. 138, and again we cannot follow the reasoning offered us, because the said act does not mention anything about quashed bills; again, it makes not even a feeble attempt to place costs on defendants; further, the title discloses its purpose — it is “an act providing for payment of costs in criminal cases by the proper county;” and, lastly, it does not modify in the slightest degree the right or power of petit juries as to the payment of costs under the Act of 1860.

Upon the case stated we shall enter judgment in accordance with the contention of the defendants.

We have been requested by the district attorney’s office and by the controller’s office to give an opinion — without a judgment, of course, because we have nothing of the kind before us in the case stated — as to the liability of the county for the costs on the quashed bills, and reluctantly we have decided to give our views but with no other thought in mind than to be presently helpful; we must reserve the right to decide each cause, with its specific facts as it is presented and to change our views if it later appear that they be erroneous.

If there be any liability upon the county, it is because of the Act of 1887 and not that of 1860.

The Act of 1887 is “an act providing for payment of costs in criminal cases by the proper county.” Section 1 thereof provides as follows: “The costs of prosecution accruing in every case of misdemeanor in any of the courts of quarter sessions of the peace of this Commonwealth shall, on the termination of the prosecution by the bill of indictment being ignored by the grand jury, or by a verdict of a traverse jury, and sentence of the court thereon, be immediately chargeable to and paid by the proper county: . . .”

At this time we wish to note that there is one fact in our case different from the case of Richards v. Clearfield County, supra. The indictments in this case were quashed for a matter of form, for formal defect, for insufficiency, for fault of the prosecutor or prosecuting officer, and not because of irregularities in the filing, sealing and securing the jury wheel from which the names of those composing .the grand jury were drawn. However, we do not mean to infer by calling attention to that outstanding difference that the liability of the county may or may not be fixed, depending upon who is at fault.

And we cannot follow Judge Gordon when he says that the Act of 1887 is much broader in its scope and a step far in advance of preceding acts, and that it has broadened the liability of the county so as to cover costs in an emergency, etc.

It is our opinion that the aim of the Act of 1887 was not to fix a new or greater liability, but only to require instant payment of the legal costs by the county upon the termination of the prosecution. The Act of 1887 imposes no new liability upon the county to pay where it was not before required to pay.

The said act makes the county liable in the first instance and not the last; the county no longer guarantees payment, but it pays presently and then looks for reimbursement to those ultimately obligated. To that extent, and no further, does the Act of 1887 go, and only to that extent does it correct the alleged hardships of the Act of 1860.

The said act provides for payment “on the termination of the prosecution.” Termination how? First, “by the bill of indictment being ignored by the grand jury;” secondly, “by a verdict of a traverse jury and sentence of the court thereon?” The said act contains no provision about costs incurred on quashed bills — as to quashed bills it is silent. If the legislature had intended to impose additional liability on the county, it surely would have said so and in no uncertain terms.

And it is our opinion that the “prosecution” contemplated by the legislature is terminated when the bill of indictment is quashed — the quashing of the bill puts an end to that particular “prosecution;” neither the Commonwealth nor the prosecutor has any inherent power over it — the authority both of the district attorney and of the prosecutor is at an end — each may have the right to institute proceedings de novo but neither has any command over the old prosecution. True, a new bill may be sent to a grand jury by leave or direction of the court founded upon the original information — it seems to be conceded that the court has discretionary power to make such an order in exceptional or rare cases. Such a new bill, however, is not the same prosecution, but is a new, separate and distinct prosecution.

It seems to us that the language of the Act of 1887 is clear and capable of only one meaning, and we should not be influenced to mold the language to give it an effect not intended. Because we may have some notions about hardships, we should not construe the language contrary to its clear meaning in order to extend it so it may embrace emergency cases.

And now, Jan. 22, 1930, after due consideration, we direct judgment to be entered on the case stated against the defendants in the sum of $515.34.


author: Landis, P. J.,

text:
    Bricker Baking Company v. Sweigart.

      Charles W. Eaby and F. S. Groff, for plaintiff.

      H. Frank Eshleman, for defendant.
    April 19, 1930.
   Landis, P. J.,

On March 4, 1929, the Bricker Baking Company entered into a written agreement with Clarence B. Hershey, whereby it agreed to sell and deliver to Hershey bread and other baker’s products, and that it would extend to him a credit for bread and other baker’s products not exceeding $400. Hershey agreed to furnish to the Bricker Baking Company security for the payment of the purchase of bread and other baker’s products not exceeding $400. On March 5, 1929, at the bottom of said agreement, the defendant signed the following:

“For value received, I hereby become surety to the Brieker Baking Company for the payment of bread and other baker’s produets sold by said Brieker Baking Company to Clarence B. Hershey, buyer, on credit, under the foregoing agreement, to an amount not exceeding four hundred dollars.”

In accordance with the said written agreement, the Brieker Baking Company sold to the said Clarence B. Hershey bread and other baker’s products to the amount of $1043.77. The goods were delivered between June 10, 1929, and July 20, 1929. Between June 28, 1929, and Aug. 26, 1929, Hershey paid to the Brieker Baking Company the sum of $849.32, and it now claims, on the surety agreement of Sweigart, the sum of $194.45, which is the balance of the account unpaid. The defendant’s counsel asserts that, as the credit allowed was more than $400, and more than that sum was paid by Hershey, he is not liable for anything on his agreement. Under this view, he has filed an affidavit of defense raising a question of law, and he now asks the court to decree that, under the facts shown, judgment should now be entered for the defendant.

The defendant by his written agreement covenanted to answer for the default of Hershey to the extent of $400. The instrument contained no words which, in substance, meant that he did not intend to contract to be a surety. Under the provisions of the Act of July 24, 1913, P. L. 971, the defendant thus became subject to the liability of a surety: Sullivan Smythfield Co. v. Welsh, 91 Pa. Superior Ct. 413.

It will be noticed that the agreement signed by Sweigart does not stipulate that the Brieker Baking Company would only sell Hershey $400 worth of merchandise. It agreed to extend to him a credit of $400. It could sell him as much more as it liked and Hershey could pay.

It is well settled that where there are items of debit and credit in a running account and the intention of the debtor at the time of making payment to specifically apply them is not shown, either in words, acts or circumstances, they will be appropriated to the discharge of the items first due in the order of account: Philadelphia v. Tradesmen’s Trust Co., 38 Pa. Superior Ct. 286; Pardee v. Markle, 111 Pa. 548. And when the debtor makes no appropriation and the creditor does so, the latter may apply it to that item of debt which to him seems least secure: Reed v. Ward, 22 Pa. 144; Hollister v. Davis, 54 Pa. 508; Risher v. Risher, 194 Pa. 164; Chestnut Street Trust and Saving Fund Co. v. Hart, 217 Pa. 506. In this case, the plaintiff company could apply the payments to any part of its debt, for the debtor, Hershey, made no appropriation at the time of payment.

It will be observed that Sweigart’s agreement of suretyship did not restrict the quantity of merchandise to be purchased by Hershey to any particular amount. What he did was to become security “for the payment of bread and other baker’s products sold by said Brieker Baking Company to Clarence B. Hershey, buyer, on credit, under the foregoing agreement, to an amount not exceeding four hundred dollars.” Whether it was the first lot of merchandise or the last which was sold on credit makes no difference; but his liability was limited to $400. It, therefore, seems to me that he is responsible for the deficiency remaining unpaid, as it only amounted to $194.45. In any event, under the circumstances, I am of the opinion that the point of law raised must be decided in favor of the plaintiff.

It is now ordered that the defendant shall, within fifteen days of the filing of this opinion, file a supplemental affidavit of defense to the averments of fact of the statement.

Question of law decided in favor of plaintiff.

From George Ross Eshleman, Lancaster, Pa.


author: Smith, J.,

text:
    Jones v. Jones.

      E. S. Miller, for libellant; Saul, Ewing, Remide & Saul, for respondent.
    Sept. 26, 1930.
   Smith, J.,

The

libellant filed her libel in the above court, to the above term and number, on Oct. 16, 1925, and filed her amended libel on May 11, 1927.

Paragraph 3 of her amended libel reads as follows: “At the time said marriage was contracted, the libellant was a citizen of the State of Pennsylvania and resided at No. 712 North Fifth Street in said state; and the respondent was a citizen of the State of Pennsylvania and resided at No. 1014 North Sixth Street in said state; immediately after their said marriage, the said libellant and respondent resided together at No. 1014 North Sixth Street in the State of Pennsylvania and have since resided at No. 1014 North Sixth Street, No. 1009 North Sixth Street in said City of Philadelphia and State of Pennsylvania, and at the corner of Roberts Road and Montgomery Avenue, Bryn Mawr, Pa., until within four years, during which, though libellant has retained her residence in Pennsylvania, she has had no place of continuing abode there, having been temporarily absent from this state.

“The present residence of the libellant is in Philadelphia in the Bellevue-Stratford Hotel in the State of Pennsylvania, and she has been a resident of the State of Pennsylvania for fifty-four years previous to the filing of this libel. The present residence of the respondent is the building of the Union League Club on west side of Broad below Chestnut Street in Philadelphia.”

The ground alleged for the divorce is that the said Charles J. Jones, the respondent in this cause, from time to time since the time of their said marriage, by cruel and barbarous treatment endangered this libellant’s life and offered such indignities to her person as to render her condition intolerable and life burdensome and thereby forced her to withdraw from his house and family.

A bill of particulars was filed and the respondent made answer to the original libel and the amended libel and the bill of particulars, denying the charges alleged. A master was appointed and hearings had. Those hearings were never completed, for, as the master finds, “at the conclusion of libellant’s evidence as to her residence, the master felt some doubt as to the jurisdiction of your honorable court to adjudicate the case and accordingly requested counsel for both parties to furnish him with briefs upon the question of jurisdiction. It was further agreed by counsel, with the approval of the master, that no further testimony upon the merits should be taken until the jurisdictional question should have been disposed of.” After the consideration of the testimony and the briefs submitted, the master came to the conclusion that the court was without jurisdiction, and if such conclusion should not be approved by the court, he suggested that the case should be referred back to take further testimony upon the merits. The respondent offered no testimony.

We do not commend this method of procedure, for the reason that the Commonwealth at all times is an unnamed interested party, and although the parties themselves might be bound by final determination as to jurisdiction, the court feels there might be testimony produced in some eases setting forth a state of facts which again might raise the question of jurisdiction and a former adjudication would not be binding on the Commonwealth.

The master filed his report on June 30, 1927, to which the libellant has filed exceptions, which are now before the court. After the master’s original report had been prepared, he received from counsel for the libellant a request for findings of fact and a conclusion of law, which he filed at the same time in a supplementary report, on which we have separately passed, and are as follows:

“1. Respondent resided in Montgomery County from 1914, when the family home was bought, and continued residence there until 1924, when the property was sold. Then he took up his residence again in Philadelphia County and still resides there.” This request we affirm.

“2. There was not a definite breaking of the marital relation until this action was begun. Early in May, 1926, libellant appears to have resolved that she would take legal proceedings against her husband for ill-treatment committed toward her, and the present action seems to be the outcome of that purpose.” This request we deny. The final “farewell” was said on said date, but there is no evidence that she then contemplated legal proceedings.

“3. The libellant has been connected by every ordinary tie to Pennsylvania, including the houses successively in which she lived, the residence of her husband, blood relations in general and property interests, and has had no connection with any other state, tending to constitute residence, except stay in California, in two periods, pending the marital relation, under the circumstances of such stay shown in the evidence. Only so far as these imply was her connection with Pennsylvania changed up to date of institution of this action.” This request we deny.

“Conclusion of law. 1. If cause for an action of divorce, such as is defined by Pennsylvania law, by the present libellant against the present respondent existed in May, 1926, she was then entitled to resort to a court of this state for such redress.” This is denied. Action for divorce was not instituted until Oct. 16, 1926, but as she had acquired a residence in the State of California between May, 1926, and Oct. 16, 1926, she was not entitled to redress in this state.

Findings of fact by the court.

1. Libellant and respondent were married in Philadelphia, Jan. 27, 1897, by Father Toomey in the Church of the Immaculate Conception, and at the time of their marriage were residents of Philadelphia.

2. Libellant was born Aug. 14, 1872, and the respondent March 25, 1867, both at Philadelphia, and resided there continuously until the time of their marriage. The respondent was a practicing physician, an eye specialist, with offices in Philadelphia.

3. After the marriage they lived in Philadelphia for a period of seventeen years, and in 1914 moved to Bryn Mawr, Montgomery County, Pennsylvania; and in 1919 together took a trip to California and remained there for two years, when the husband returned, apparently some time in 1920, the wife remaining.

4. The wife returned to the Bryn Mawr domicile about September, 1921, and remained until August, 1922, when she again went to California and remained in California continuously up to the present time, except for a period from Sept. 24, 1926, to Oct. 26, 1926, when she temporarily lodged at a hotel in Philadelphia for the purpose of instituting these proceedings.

5. The husband visited his wife and family every summer while they were in California during the period between 1922 and 1926, and after the house at Bryn Mawr was sold in 1924 he visited them for a period of two months and returned and took up his residence at the Pennsylvania Hotel in Philadelphia and afterwards at the Union League.

6. In 1925 the parties contemplated making a home in California, to find a house and give up Philadelphia as their residence, but that plan was never consummated.

7. The husband had made reservations in January, 1925, for the family to go abroad in June and travel in Europe for two or three years, but the daughter broke down and was physically and mentally unable to go, and the trip was abandoned.

8. In 1924, while in California, the wife and husband planned to live in the Locust Street house in Philadelphia, which she owned, and architects were consulted about plans, and they had contemplated moving in the fall. However, by reason of a dispute, this never materialized.

9. The libellant separated from her husband May 2, 1926, and said farewell to him in San Diego, California.

10. During her last four years’ stay in California they communicated concerning business matters, and she executed a power of attorney in favor of respondent, and trusted him with large sums of money belonging to her.

11. Her stay in California benefited her health and that of her daughter, one or the other of them being under a doctor’s care at different periods.

12. The father of the libellant has left a trust fund of $400,000, under the control of the Orphans’ Court of Philadelphia, for her maintenance and support; and she had continuously a bank account in Philadelphia with the Girard Trust Company while she was in California.

13. Her husband assisted her in making out her income tax return for the several years while she was in California, and stated her residence as No. 1507 Locust Street, Philadelphia, the house which libellant owned.

14. The residence and domicile of the respondent during the period of his entire life, except from 1914 to 1924, when he lived in Montgomery County, Pennsylvania, has been Philadelphia. He has always been a resident of Pennsylvania.

15. There were five children born of this union — Bernard, twenty-nine years of age, who lives in Paris, France; Charles, twenty-five years of age, living in Paris; Bryant, twenty-two years of age, living in Paris; Catherine and Dorothy, twin girls, twenty-one years of age, Dorothy being at school in Chestnut Hill, Philadelphia, while Catherine lives with her mother in California.

16. On her second trip to California, when she left Aug. 15, 1922, it was with her husband’s consent, and he consented to her remaining there from said date up to May 2, 1926, 'when libellant considered that the husband’s conduct was such that she severed marital relations. On said date, Aug. 15, 1922, she had intended not to return to any domicile owned by her husband, but this intention was never disclosed to her husband, and from the bill of particulars filed they had lived together in the years 1923 and 1925 in California, and the respondent in his answer admits the wife’s coverture.

17. From- May 2, 1926, to Sept. 24, 1926, she continued to live in California, after which last date she resided at the Bellevue-Stratford Hotel in Philadelphia until Oct. 26, 1926. She filed her libel while a guest in said hotel to the above court on Oct. 16, 1926, and her visit to Philadelphia was for the purpose of instituting an action in divorce. She immediately returned to California, where she remained until April, 1927, when she came to Philadelphia to attend the hearing as a witness.

18. On May 2,1926, when the final break took place, and immediately thereafter and previous to the filing of the libel, the libellant became a resident of and had her domicile in the State of California.

Discussion.

The libellant in her libel places her last known domicile in the State of Pennsylvania as that of Bryn Mawr, Montgomery County, “until within four years, during which, though libellant has retained her residence in Pennsylvania, she has no place of continuing abode there, having been temporarily absent from the state.”

In her testimony, the libellant evasively fixed her home in Pennsylvania as No. 1507 Locust Street, Philadelphia, the house which she owned.

In her brief submitted, she now fixes her home in the State of Pennsylvania in the County of Philadelphia, because her husband resided in said state and county and it was her residence during coverture up to the time of the separation on May 2, 1926.

Her brief reads: “We do not stop to consider the question whether this action should be brought in the courts of Montgomery County, since both husband and wife last resided there before she went away, because (1) if her husband’s residence in Pennsylvania maintained herself in this state, as we claim it did, a like result was eifected as to the county (Philadelphia) to which he moved when he sol'd his house in Montgomery County. And, furthermore, (2) the Act of April 26, 1905, P. L. 309, paragraph 1, expressly applies, authorizing the filing of the bill in the county where the respondent resides.” This latter act ha-s been construed by our court in Ashton v. Ashton, 21 Dist. R. 611.

The Act of March 19,1923, P. L. 20, permits the wife to exhibit her petition to the judges of the Court of Common Pleas of the proper county where she resides, but the averment in the above paragraph of the petition states that she has no continuing abode in the State of Pennsylvania, and her libel fails to show that she is a bona fide resident of any county, and her petition, on its face, lacking this jurisdictional fact, should be dismissed: Mauser v. Mauser, 59 Pa. Superior Ct. 275.

Assuming, however, that the libellant, when she abandoned her husband in California and severed all marital relations on May 2, 1926, was no longer under coverture and could on that date either claim her husband’s residence as her own or adopt a new domicile, she cannot have two residences within the contemplation of our divorce law: Hilyard v. Hilyard, 87 Pa. Superior Ct. 1, 5.

“It is well settled that a wife has not only the actual but also the legal right to establish a separate domicile when ill-treated by her husband. A man is lord of the domus only so long as he rules lawfully. When the husband forfeits his right to preside over the home by reason of misconduct, then the wife acquires a legal right to have and to maintain a separate domicile. In other words, the husband’s headship over the matrimonial domicile ceases when he violates the marriage laws, and the wife is no longer required to live with or accompany him — even in theory. Under such circumstances, the law of the domicile acquired by the wronged wife will determine her marital status. Of course, to acquire a separate domicile the wife must intend to abandon her husband’s home and set up an independent home of her own.

“The words ‘bona, fide’ as used in the Act of 1854 mean an intention to make the residence permanent and not merely temporary. Had the word ‘domicile’ been used instead of ‘residence,’ it might have been consistent with nonresidence, but it was not. ‘Domicile’ is a matter of intention; ‘residence’ is a physical fact, and the term ‘bona fide residence’ means residence with domiciliary intent, i. e., a home in which the party actually lives:” Starr v. Starr, 78 Pa. Superior Ct. 579, 582, 583; Barning v. Barning, 46 Pa. Superior Ct. 291.

The test on this subject reads: “Notwithstanding the general rule that the domicile of the wife is that of her husband and that during the period of cohabitation she cannot acquire a separate domicile, even with his consent, ... a wife may acquire a separate domicile of her own for the purpose of conferring jurisdiction on the proper tribunal in a proceeding for divorce, or for separation, where the husband has been guilty of such dereliction of duty in the marital relation as entitles the wife to have it either partially or totally dissolved:” 19 Corpus Juris, § 44, page 31.

To constitute a new domicile two things are indispensable: First, residence in the new locality, and, second, the intention to remain there. The change cannot be made except facto et animo. Both are alike necessary: Barclay’s Estate, 259 Pa. 401, 405.

That she actually resided in California at the time when the separation took place there is no dispute. After the separation, was it her intention to stay there? We find with the master that “she actually lived in California continuously from Aug. 15, 1922, until Sept. 24, 1926, not because she was studying or traveling or even visiting friends or relatives in that state, but apparently because she preferred to, since the evidence of her own and her children’s illness does not of itself account for so extended a stay. On Sept. 24th she returned to Pennsylvania ‘chiefly for the purpose of instituting this action in divorce,’ and lived in a hotel until Oct. 26th, ten days after the libel was filed, when she returned to the place in which she had been living in California. Within a month after her return she leased a bungalow for a year, which lease did not expire until Nov. 21, 1927. She remained in California until April 14, 1927, when she came to Philadelphia to testify in the present proceeding, and will doubtless return to California as soon as it is concluded.”

On page 53, the libellant testified: “Q. When you returned to Philadelphia in September, 1926, you stated, among other things, that you came here to see about starting these divorce proceedings? A. Yes. Q. Did you have any intention of residing here then? A. I came back to place this girl in school. Q. Answer yes or no, then explain. A. I did not intend to remain then, no. Q. You have a lease on a house or bungalow in California that expires in November of this year, have you not? A. Yes. Q. When did you take that lease? A. I took it in November, 1926.” At page 54: “Q. Was it or was it not within a month after your return from Philadelphia, after commencing these proceedings, that you took a year’s lease on a house in California. . . . A. It was about six weeks, I think.”

She also testified that she discussed with her real estate agents the sale of her house at Locust Street, Philadelphia, in September or October, 1926.

Her answers as to her residence were evasive. “Q. After the Bryn Mawr property was sold, what place in Pennsylvania was your home? A. I did not have any home in Pennsylvania. I owned this property. Q. I am not asking where your house was, Mrs. Jones, I am asking where your home was — not what house you had. Q. Is there anything you can add to that, Mrs. Jones? A. No. ... Q. Mrs. Jones, I am not asking you where your house was— where your dwelling was in Pennsylvania after Bryn Mawr ceased to be your home, because the house was sold; what I am asking you is what place in Pennsylvania was the place which you considered you were connected with as the place of your home after the Bryn Mawr property was given up? A. The place that I considered I was connected with was No. 1507 Locust Street. Q. What city? A. Philadelphia. . . . Q. When you referred to No. 1507 Locust Street as a home in Pennsylvania, did you mean that in the sense of a place to live or a place to have mail sent or income tax returns sent? A. I meant it as a place to go in to live. I thought if ever I came back to Philadelphia I had that house idle and I could go right into it. Q. You could go into it? A. Yes. Q. Did you have plans as to whether or not you would go into it, except the plans in 1924, which were not fulfilled? A. No, it was before 1924 we had all the plans made for the alteration. Then Mr. Brockie said it was inadvisable.”

The libellant had a continued residence in California for four years and after her separation from her husband she never had any intention of returning to Philadelphia and simply came for the institution of these divorce proceedings, and immediately after the filing of the libel she rented a house in California for another year. No other inference can be drawn from the evidence than that she had determined to continue her residence in California and make that her domicile in facto et animo. There is absolutely nothing in the testimony to show that she ever intended to make Pennsylvania her home after the separation, nor was Pennsylvania her home at the time of the filing of this libel, nor was Montgomery or Philadelphia County.

The libellant being at the time of the filing of the libel domiciled in California, she was not, during the year preceding the filing of the libel, such a resident of this state as is contemplated by the acts of assembly; and since residence within the state for that year which immediately precedes the filing of the libel is a fundamental jurisdictional requirement, the conclusion follows that the court is without jurisdiction of the parties: Starr v. Starr, 78 Pa. Superior Ct. 579.

Conclusions of law.

1. The libel on its face does not set forth sufficient facts to give the court jurisdiction.

2. The libellant was not a bona fide resident of the State of Pennsylvania for one year prior to the filing of the libel.

Order.

And now, Sept. 26, 1930, the exceptions to the master’s report are dismissed, and the recommendation of the master is approved, and the libel is dismissed.


author: Alessandroni, J.,

text:
    Kreidler et ux. v. Leslie.

      Joseph L. Fox, for plaintiffs; Maurice N. Sloan, for defendant.
    July 17, 1930.
   Alessandroni, J.,

The undenied petition of the defendant recites that he was served with a summons in trespass at 5th and Walnut Streets, Reading, Pennsylvania, by a deputy sheriff of Berks County who was deputized by the Sheriff of Philadelphia, and that this action of trespass resulted from an automobile collision which took place in Berks County. The defendant is a resident of Allentown, Pennsylvania.

Under this statement of facts service of the summons in trespass should be set aside. There is no authority in this state for the service of a summons in trespass outside of the county in which it was issued, when the automobile accident which forms the basis of the action also took place outside of the county in which the suit was started.

And now, to wit, July 17, 1930, the rule to set aside service of summons is made absolute.


author: Henry, P. J.,

text:
    Chambers v. Philadelphia Inquirer.

      Walter Thomas and Henry M. Stevenson, for plaintiff.

      Graham & Gilfillan, for defendant.
    Oct. 2, 1930.
   Henry, P. J.,

52nd judicial district, specially presiding, In this action in trespass for alleged libel the jury returned a verdict in favor of plaintiff for $9000. The defendant has taken a rule for a new trial, assigning in support of the motion that the verdict was against the evidence, against the weight of the evidence, against the law, against the charge of the court, and that it was excessive.

At the argument upon the rule the sole reason urged in its support was the one last stated.

The Philadelphia Inquirer, with a circulation of about 280,000 in Pennsylvania, New Jersey and surrounding territory, on July 21, 1925, published an article respecting the plaintiff, who up to that time had been postmistress at Lenni, Delaware County, Pennsylvania. It cannot be and was not disputed that the article in question was libelous, if untrue. The article was not true, in part. Charges were brought against plaintiff by the United States authorities for misconduct as postmistress; she was deposed from her office; she was brought before the United States Commissioner and held for trial, and subsequently to the publication tried in the United States District Court, and there acquitted of the criminal charge. The article, however, did state, prominently, that the plaintiff had been trapped in tampering with the mails passing through the Lenni Post Office, that United States inspectors had made statements strongly indicating her guilt, that plaintiff had confessed wrongfully opening mail, and had stated that it was for amusement and thrill, that after a partial hearing before a United States Commissioner she was held for a further hearing, none of which facts were sustained at this trial, or any evidence given in support of them.

The plaintiff submitted evidence to the effect that a letter prepared by her counsel, calling attention to the alleged untruths contained in the publication, had been mailed to the offices of the defendant, in effect demanding a retraction, but that no retraction followed. The receipt of this letter was denied by the defendant.

It was further contended at the trial that the acquittal of the plaintiff in the United States Court was published in an obscure portion of the Inquirer, and not given anything like the prominence given to the publication of the alleged libel.

The evidence as to damage to the reputation of plaintiff was restricted to the extent of the circulation of the Inquirer in the vicinity where plaintiff lived, and the manner in which she was treated by her friends and acquaintances in that- community.

There was no evidence of any special damage, and excepting the charge of the exeessiveness of the verdict there is no fault found with the trial.

At the trial, the loss of her position as postmistress' was prominently thrown before the jury, and it is quite likely that this loss of her position by plaintiff may have had some influence with the jury in rendering this sizable verdict. This loss of her position was in no sense due to the publication by the defendant. Although she was acquitted of the criminal charge by the jury, the fact remains that she was never reinstated as postmistress by the United States authorities, which lends point to the argument that there may have been some truth in the published statement by the defendant, which it was unable to justify at this trial.

It can hardly be supposed that the publishers and managers of this prominent daily would willfully and maliciously make a publication of this character against this woman, and undoubtedly those in authority were misled, either by an overzealous reporter or by statements given out by the United States inspectors. Neither the reporter, who was absent in some, foreign country, nor the inspectors could be produced at the trial. Introduction of the report of these inspectors was objected to by the plaintiff upon the ground that it is contrary to the rules of the Post Office Department to permit any divulging of the contents of its records or reports. The admission of these reports as in mitigation of damages was not pressed; but the court sees no reason for the establishment or existence of a rule by any department which excludes evidence which may be necessary in the proper administration of justice; and such rules should not be sustained by the courts unless inimical to the Government itself.

Under all the evidence in this case, the verdict seems to be grossly excessive, and unless substantially reduced a new trial should be granted.

And now, Oct. 2, 1930, the rule for a new trial will be discharged if the plaintiff files a stipulation, within ten days, remitting $4500 of the verdict; and upon the filing of such stipulation judgment is directed to be entered upon the verdict for the sum of $4500 upon payment of the jury fee. In default of filing said stipulation within the period aforesaid, rule absolute.


author: Lewis, J.,

text:
    Stombaugh v. Stombaugh.

      C. A. Sowers, for plaintiff; Umsted & Wolfe, for defendant.
    Oct. 25, 1930.
   Lewis, J.,

The plaintiff, Ruth Stombaugh, brought an action in the Circuit Court of Adair County, Missouri, seeking a divorce from her husband, Dennis E. Stombaugh. The defendant entered his voluntary appearance, waived the issuance and service of summons and filed his answer to the petition for divorce.

On April 3, 1929, a decree of divorce was duly rendered by the Missouri court, which provided, inter alia, that the libellant (the plaintiff herein) “is awarded as permanent alimony the sum of $75 per month, payable in advance on the first day of each and every month hereafter, as long as she shall remain single, and not remarry. ...”

The action herein is to recover the sum of $825 alleged to be due by reason of the award of the Circuit Court in Missouri, and is based upon an exemplified copy of the record in that state. The question to be determined is whether an order for permanent alimony, to be in definite future instalments, entered by the court of a sister state is within the protection of the full faith and credit clause of the Constitution of the United States and enforceable in Pennsylvania.

It is averred in the statement of claim that the decree of the court upon which suit is brought remains in full force and is not “annulled, reversed or satisfied,” nor does it appear from the pleadings that any application was made by the defendant to the Missouri court for any modification of the decree.

The affidavit of defense denies the jurisdiction of the Missouri court because “there was no personal service of process on the defendant,” and “it is a fact that the said defendant was not a resident of the State of Missouri, but was a resident of the Commonwealth of Pennsylvania.” There is also a general denial in the affidavit of defense that the decree, constituting plaintiff’s Exhibit “A,” remains in full force and effect, and it is averred, as a further defense, “that a decree awarding alimony is not such a definitive decree as must be recognized by this Commonwealth under article IV, section 1, of the Constitution of the United States.”

We see no merit in the defense of want of personal service of process on defendant. It is disclosed that defendant personally appeared in said case, waived issuance and service of summons and consented that the case be tried by the Missouri court. By the weight of authority his voluntary appearance, as well as the answer filed by him, cured the want or absence of service of process: Lyon v. Lyon, 13 Dist. R. 623; Edwards, Divorce in Pennsylvania, § 112, page 77.

As was well said by Head, J., in Com. v. Parker, 59 Pa. Superior Ct. 74:

“. . . It has always been true that one sued in a foreign jurisdiction may voluntarily bring himself within that jurisdiction, and if he does so and the court had jurisdiction of the subject-matter litigated, the resulting judgment will be conclusive; and full'faith and credit must be given to such judgment in other states by reason of the provision of the Federal Constitution on that subject. What, then, was the nature of the answer filed by the wife in the Nevada court and to what extent, if at all, did she by that act submit herself to its jurisdiction? She was under no compulsion to file any answer, but having chosen to do so, she must accept the consequences which the law attaches to such an act. ...”

The general principle of law is stated in 1 Ruling Case Law, § 101, page 957, to be that by virtue of the United States Constitution and the Act of Congress requiring full faith and credit to be given in each state to the public acts, records and judicial proceedings of every other state, a decree for alimony rendered in a foreign forum may be enforced in a sister state or in the Federal courts in another state or territory, provided it constitutes a final-award and is not subject to modification by the court which granted it, by reason of such power being reserved in the decree itself, conferred by statute or held to exist inherently even in the absence of statute.

A few courts, however, erroneously interpreting a decision of the United States Supreme Court here relied upon by counsel for defendant (Lynde v. Lynde, 181 U. S. 183), have held that a periodical allowance, so far as it awards alimony to become due and payable in the future, is not within the protection of the full faith and credit clause of the Federal Constitution so as to require its enforcement as to such instalments in another state. In a subsequent decision, however, the United States Supreme Court cleared up the tendency to confusion by holding that, unless it appears from the law of the jurisdiction wherein a decree was granted that the power of modification extends to accrued as well as to future instalments of alimony, a periodical allowance constitutes a final judgment within the meaning of the full faith and credit clause, so far as instalments already accrued are concerned, provided no modification of the decree has been actually made prior to the maturity of such instalments: Sistare v. Sistare, 218 U. S. 1, 20 Anno. Cas. 1061, and note, 28 L. R. A. (N. S.) 1068, and note; 1 Ruling Case Law, § 102, page 959.

“So long as a judgment for alimony, payable in instalments, is absolute in its terms and remains unmodified, or at least until an application for modification has been made, it is final as to instalments which have accrued and is entitled to full faith and credit in the courts of a sister state in an action founded upon it:” Holton v. Holton, 153 Minn. 346, 190 N. W. Repr. 542, 41 A. L. R. 1415.

In Cotter v. Cotter, 138 C. C. A. 453, 225 Fed. Repr. 471, heard by the Circuit Court of Appeals for the 9th Circuit, Justice Wolverton expressed the views of the court respecting the decision of the Supreme Court of the United States as set forth in the Lynde and Sistare cases, above referred to, as follows: “It has been judicially settled by the Supreme Court that a decree awarding alimony, payable in future instalments, constitutes a proper basis for suit in another jurisdiction under the ‘full faith and credit’ clause of the Federal Constitution, unless the right to receive the alimony is so discretionary with the court rendering the decree that, even in the absence of an application to modify the decree, no vested right exists.’

The defendant has neither pleaded nor cited to the court any statute or law of the State of Missouri (where the instant decree was granted) which vests any discretion with the Missouri court over the right of the plaintiff to receive the alimony decreed, in the absence of any application to modify the decree. Accordingly, this court can take no notice of the law of Missouri on this subject, and it must be presumed that the defendant included in his affidavit of defense all averments favorable to his contention: Wright v. Carbonic Co., 271 Pa. 332 (1921).

Campbell v. Campbell, 28 Okla. 838, 115 Pac. Repr. 1111, involved a Missouri judgment for alimony which required the defendant to pay $25 a month so long as plaintiff remained single. The defendant having removed to Oklahoma, an action was brought in the court of that state to recover alimony which had accrued upon the Missouri judgment. Section 2926, St. of Missouri, 1899 (applied in that case), reads: “The court, on the application of either party, may make such alteration, from time to time, as to the allowance of alimony and maintenance as may be proper.” It was urged in that case that the Missouri judgment was not final and not entitled to full faith and credit in the courts of Oklahoma. After considering the Lynde and Sistare cases, the court reached the conclusion that under controlling authority of these cases the judgment was final as to instalments of alimony which were past due and unpaid.

The rule deduced in Levine v. Levine, 95 Ore. 94, 187 Pac. Repr. 609, from the Federal decisions, was “that every reasonable implication must be resorted to against the existence of power to revoke or modify a judgment for alimony, in so far as it affects accrued instalments; that, in the absence of clear language in the statute manifesting an intention to confer such power, a statute which in general terms confers the power of modification will be construed to mean that the power, when exercised, can operate prospectively only and not retrospectively.”

There is nothing in the pleadings which would justify the conclusion that the Circuit Court of Missouri, which granted the decree in question, had the power of modification of the decree extending to accrued as well as to future instalments of alimony; nor is there any allegation that any application was made by the defendant for any modification of said decree. We think the award upon which this suit was brought constitutes a final judgment within the meaning of the full faith and credit clause, so far as it relates to instalments already accrued: Rosenberg v. Rosenberg, 152 Maryland, 49; McWilliams v. McWilliams, 216 Alabama, 16.

We are, therefore, constrained to hold that the husband’s defense is insufficient to prevent judgment. Rule absolute.


author: Kirkpatrick, Dist. J.,

text:
    Termine et al. v. West Jersey and Seashore Railroad Co.

      Robert M. Bernstein, for plaintiffs; Barnes, Biddle & Myers, for defendant.
    Oct. 28, 1930.
   Kirkpatrick, Dist. J.,

These two separate actions were tried together by agreement of the parties. The original suits were brought in the Court of Common Pleas of Philadelphia County, Pennsylvania, and in each case the statement of claim alleged that the plaintiff, a passenger on one of the defendant’s trains, had been injured by the breaking of a seat in which he was seating himself. Damages were claimed in each case in the amount of $5000. The cases were removed by the defendant to this court.

In the course of his opening address to the jury and partly in response to questions by the court the plaintiffs’ attorney stated that as a result of the injuries Termine was unable to work for two weeks and visited his doctor seven times, and that Ronono was away from work for three weeks and also saw his doctor seven times. Termine’s wages were $55 a week and Ronono’s earnings averaged between $60 and $75 a week. The injuries were not permanent and, except for “minor discomfort,” both plaintiffs had entirely recovered and returned to work within three weeks after the accident.

The court, being satisfied that in neither case was a recovery of the juris dictional amount legally possible, of its own motion remanded the eases. The defendants have filed petitions, praying that the order of remand be vacated.

If the suit was not rightfully in the Federal court, it was the court’s positive duty to order a remand: Barth v. Coler, 60 Fed. Repr. 466. “. . . the question of jurisdiction is one which the court is bound to ask and answer for itself, -whether suggested or not, and without respect to the relation of the parties:” Pacific Telephone & Telegraph Co. v. Agnew, 2 Fed. Repr. (2nd) 155.

Section 37 of the Judicial Code (U. S. C., title 28, sec. 80) provides, in part, that “if in any suit . . . removed from a State court to a district court of the United States, it shall appear to the satisfaction of the said district court, at any time after such suit has been . . . removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said district court . . . the said district court shall proceed no further therein, but shall . . . remand it to the court from which it was removed.”

Language can scarcely be plainer than this. If there is any doubt that the statute applies to the cases now being considered, it probably arises from a misunderstanding of general expressions in a number of opinions relating to the jurisdiction of the Federal courts.

First, there are a number of decisions which appear to hold generally that, where the claim is unliquidated, the amount of damages claimed by the plaintiff is the sole test of Federal jurisdiction, so far as concerns courts of first instance. Without reviewing these cases at length, they will be found to fall into three general classes: (a) cases in which the question of remand comes up upon the pleadings only; (b) cases in which there has been a recovery by verdict or otherwise for less than the jurisdictional amount. An example of this class is O. J. Lewis Mercantile Co. v. Klepner, 176 Fed. Repr. 343; (c) cases in which title or damage to property is involved and the plaintiff’s evidence fails to show that the value of the property or the damage to it is in the jurisdictional amount. A case of this kind is Lord v. DeWitt, 116 Fed. Repr. 713.

None of these decisions rule the cases under consideration. The damages claimed by the pleadings always govern, provided the amount is claimed in good faith. The question in every case is whether, at the time of the removal, the suit really and substantially involved a controversy within the jurisdiction of the court. If the claim is made without the slightest possibility or hope that it can be established to the amount averred, it is not made in good faith and the jurisdictional amount is not really and substantially involved. This is just as true of cases originally brought in the state court and removed as of those brought in the Federal court in the first instance, though in the former the element of fraudulent exaggeration or collusion for the purpose of conferring jurisdiction upon the Federal court is, of course, lacking.

The decisions referred to go no further than to hold (a) that the question of good faith cannot be determined from an inspection of the statement of claim: Barry v. Edmunds, 116 U. S. 550; (b) that the bare fact that the recovery is less than the jurisdictional amount does not establish conclusively that the claim was not in good faith or without a reasonable hope of recovering the amount claimed; (c) that in the absence of a definite showing that the claim was not made in good faith, the mere fact that the plaintiff has failed to establish it does not require a remand.

Second, there are also decisions (relied upon by the defendant here) to the effect that once Federal jurisdiction has attached, it will not be lost by a change in conditions: Kirby v. American Soda Fountain Co., 194 U. S. 141. These cases all involve situations in which Federal jurisdiction has actually attached. The question here is whether the basis of Federal jurisdiction has ever existed.

There is ample authority for the remand ordered in these cases.

In Hilton v. Dickinson, 108 U. S. 165, the court said: “It is undoubtedly true that until it is in some way shown by the record that the sum demanded is not the matter in dispute, that sum will govern in all questions of jurisdiction, but it is equally true that when it is shown that the sum demanded is not the real matter in dispute, the sum shown, and not the sum demanded, will prevail.”

In Home Life Ins. Co. v. Sipp, 11 Fed. Repr. (2nd) 474 (C. C. A., 3rd), the court said: “The jurisdictional amount is determined, according to familiar law, not by what later is actually recovered but by what first is demanded and what the pleadings and proofs show as sustaining the good faith and validity of the demand.”

“The court ought not to have its hands tied, and be required to hear and determine controversies over which the Constitution gives it no jurisdiction, simply because one party has made false allegations of citizenship, and the other has failed purposely or otherwise to plead the facts within its own knowledge to show the want of jurisdiction. . . . The cases of Williams v. Nottawa, 104 U. S. 209, and Farmington v. Pillsbury, 114 U. S. 138, s. c., 5 Sup. Ct. Rep. 807, arising under this section, were both cases where parties had been collusively made or joined; but the language and decisions of the court cover every case where it appears to the satisfaction of the court that it is one where it has no jurisdiction, and, in my judgment, should rule the case at bar:” Hartog v. Memory, 23 Fed. Repr. 835.

“Suppose an action were brought for a manifestly trivial injury, such as a bruise or a sprained ankle, and the court can see that by no possibility could a verdict for $2000 be sustained — I know of no reason why it should not refuse cognizance of the case, and remit the parties to their proper forum. Indeed, it seems to me that wherever it appears clear from the plaintiff’s own statement, or the testimony of his witnesses, that a verdict of $2000 would be so grossly excessive as to require the court in the exercise of its judicial discretion to set it aside, and direct a new trial, it is equally its duty to dismiss the case for want of jurisdiction:” Maxwell v. Atchison, T. & S. F. R. R. Co., 34 Fed. Repr. 286.

A case substantially on all fours with the two now under consideration is Burmon and Bolonsky, Inc., v. Luckenbach S. S. Co., 39 Fed. Repr. (2nd) 619. That was a case removed from the state court, the ad damnum, being $5000. However, the court found from a letter written by the plaintiffs and offered in evidence, that when suit was entered in the state court the plaintiffs not only had no reasonable expectation to recover more than $3000, but, in fact, was making no actual claim at that time to more than $2445. The case was remanded, the court saying: “The case is distinguishable from those in which the Federal court had jurisdiction at the time of removal and was held not to have lost it because of a subsequent change in the facts or pleadings.”

In Nixon v. Town Taxi, Inc., 39 Fed. Repr. (2nd) 618, and in Wilderman v. Roth, 9 Fed. Repr. (2nd) 637, the court dismissed the actions because, although the statement of claim or declaration claimed damages in excess of $5000, the proof showed that the plaintiff could not have had any reasonable expectation that he could recover the jurisdictional amount. Neither of these were removed cases, but the language of the Act of Congress expressly applies to removed cases as well as those originally brought in the Federal court. See, also, New York Life Ins. Co. v. Johnson, 255 Fed. Repr. 938, and cases there cited.

Where the damages are unliquidated, of course, the duty to remand arises only in cases where it appears clearly and beyond all question that a recovery of the jurisdictional amount is a legal impossibility. In neither of the cases at hand could the plaintiff or his attorney have expected or even hoped to recover more than a few hundred dollars. A verdict for more than that would have been promptly set aside as excessive. It was the clear duty of the court to remand the cases.

The petition to vacate the order of remand is denied.