author: Culver, P. J.,

text:
    Brewer, Treasurer, v. Brasted et al., School Directors, and Wells Township School District.

      Lilley & Wilson, for plaintiff ; Rodney A. Mercur, for defendants.
    Feb. 6, 1928.
   Culver, P. J.,

This is a proceeding under the Uniform Declaratory Judgments Act of June 18, 1923, P. L. 840. The plaintiff is treasurer of the School District of Wells Township and the defendants are the acting members of the school board of the same school district, and the same district. The petition, after referring in paragraph three (3) to the proceedings in the Court of Common Pleas of this county to No. 182, December Term, 1927, wherein this court found two vacancies existed in the membership of the school board of said district and appointed Glen Noble to fill the vacancy caused by the resignation of S. J. Young for the term expiring Dec. 1, 1927, and at the same time appointed Henry Terwilliger to fill the vacancy caused by the resignation of Levi E. Coke for the term expiring Dec. 1,1931, further alleges that on Dec. 3, 1927 (which was after the expiration of the appointed term of Glen Noble and the beginning of the term for which he was elected at the November, 1927, election), an appeal was taken from the decree of this court in making said appointments to the Superior Court of Pennsylvania, which appeal is returnable the third Monday of November, 1928, and is still pending.

The petition further alleges that since the appeal was taken to the Superior Court, the school board of the School District of Wells Township has reorganized with the said two persons as members and has entered into contracts whereby the said school district has acquired, or is about to acquire, title to a piece of property in Wells Township and commence the erection of a school building thereon, further averring that the said school board so constituted has or is about to issue orders directing petitioner (the treasurer of said district) to pay the costs of said land and buildings to be constructed thereon and expenses incidental thereto out of the funds of the School District of Wells Township. And further averring that the said school board as at present organized is illegal and its acts void and that the acts of the said board of school directors in arranging to take title to the said plot of ground is illegal, for the reason that the said board is not a legal body having authority to bind the school district, it also complains that the lot of ground selected by the board of school directors for a school building is not a suitable place.

The petitioner further avers he is advised and believes that should he pay from the funds of the said school district the expenses referred to, with knowledge of the illegality, he would become personally responsible therefor and asks a declaratory decree of the court to advise and direct him as to his duty in the premises and specifically whether or not he shall pay from the funds of the school district in his hands, on orders drawn by the said board so constituted, the costs and expenses incident to the construction of the said school building.

The respondents admit paragraphs 1, 2, 3, 4 and 6 of the petition and admit a portion of paragraph 5, but aver that in the reorganization of the board of directors by said school district, Glen Noble holds his seat therein by reason of his election at the November election, 1927, for'the full period or term of six years, and contend that the said school board as at present organized is a legal body and that all its acts, when done or performed by a majority vote of its entire membership, are legal and valid.

Respondents’ answer further avers that the said board of directors as at present constituted is a legal body, having full and complete authority to bind the school district at any regular or special meeting of its said board, when it acts in a legal way, and that the said school district has purchased a lot of land as alleged by petitioner, and that it has entered into a contract with A. K. Sambrook, of Troy Borough, for the erection of a new school building thereon, and that the said Sambrook, pursuant to said contract, has commenced the erection of the said building, which is not yet completed.

Respondents further deny petitioner’s allegation that the lot of ground selected and upon which the new school building is being erected is not a suitable place for use and for all necessary purposes, and aver, to the contrary, that it is suitable and that its purchase has been expressly approved by Andrew J. Morrow, County Superintendent of Public Schools for the County of Bradford.

We believe we might well dismiss this petition for the reason that it does not alleje. that any order has been issued by the school board or presented to the treasurer for payment, but at the argument it was orally admitted that since the issuing of this petition an order has been issued by said school board and presented to the petitioner for payment and petitioner has refused to pay the same; therefore, we will consider the petition as amended in this respect.

We gather from the petition and the contentions made at the oral argument that petitioner bases his contention that the school board as now organized is illegal upon the contention that the appointments made by this court to fill the vacancies hereinbefore referred to were illegal and that the said appointees are not school directors of said district. One of said appointments, to wit, that of Glen Noble, was to fill the term expiring Dec. 1, 1927, and since that time he has acted, not by virtue of the appointment, but by virtue of his election at the last municipal election. If we understand the purport of this petition correctly, it raises the identical question that the court heretofore passed upon in making the appointments referred to in the petition, from which decree an appeal is now pending in the Superior Court. If such be its purport, we believe the validities of those appointments must now be determined by the Superior Court and not by this court after the record has been removed by a certiorari to the Superior Court. We are further of opinion that the petitioner has an adequate remedy at law independent of the Uniform Declaratory Judgments Act referred to. Moreover, this petition asks the court to determine the validity of orders that may issue in the future and before their issuance. We doubt our power to make such a decree, for the validity of orders that may issue by this school board in the future may be affected by other considerations and other facts than the legality of the constitution of the board, which there is no possible way now of determining.

We are further of opinion that the petition cannot be sustained, for the reason that all to be affected by the decree asked for are not parties to the proceeding and have not been heard. The petition alleges that the act of this school board in purchasing the lot of land is illegal, and it further avers that the contracts entered into by this school board for the construction of a school building, for the payment of which the orders now complained of will presumably be given, are illegal. If wé should decide in this proceeding that our previous decision was wrong, and that the director or directors by this court then appointed were not legally appointed and are not members of the school board, and that the school board as at present is not a legal body and that its acts in entering into the contracts of purchase of land and construction of a school building are illegal, as the petitioner contends, the effect of such decision would be to declare illegal and invalid the contracts referred to, and that the contracting parties were not entitled to be paid by the school district, and all this would be done to the prejudice of said contracting parties without their being a party to this litigation or having any opportunity to be heard. We, therefore, believe that the language of Chief Justice von Moschzisker in Kariher’s Petition, 284 Pa. 455, 471, is controlling. Chief Justice von Moschzisker there said: “Before closing our consideration of the branch of the case now under discussion, it may be well to state that, in all jurisdictions where declaratory judgment practice obtains, the rule is established that it is a matter of judicial discretion whether or not jurisdiction will be taken of any particular case (Dyson v. Attorney-General (1911), 1 K. B. 410, 417; Braman v. Babcock, 98 Conn. 549, 120 Atl. Repr. 150; section 6 of the act); that a proceeding to obtain such a judgment will not be entertained where the court lacks jurisdiction of the subject-matter '-involved (British South Africa Co. v. Companhia de Mocambique (1892), 2 Q. B. 358), or where another statutory remedy has been specially provided for the character of case in hand (Barraclough v. Brown (1897), A. C. 615; Bull v. Attorney-General (1916), 2 A. C. 564); and that jurisdiction will never be assumed unless the tribunal appealed to is satisfied that an actual controversy, or the ripening seeds of one, exists between parties, all of whom are sui juris and before the court, and that the declaration sought will be a practical help in ending the controversy: Lewis v. Green (1905), 2, Ch. 340; State v. Board of Commissioners, 117 Kan. 151, 230 Pac. Repr. 531; Axton v. Goodman, 265 S. W. Repr. (Ky) 806; Ezzell v. Exall, 269 S. W. Repr (Ky.) 752. Moreover, in a declaratory judgment proceeding, the court will not decide future rights in anticipation of an event which may not happen, but, just as in the ordinary executory action, it will wait until the event actually takes place, unless special circumstances appear which warrant an immediate decision, as, for instance, where present rights depend on the declaration sought by plaintiff; and even then such rights will not be determined unless all parties concerned in their adjudication are present and ready to proceed with the case (see section 11 of the act), so that the judgment rendered will make the issues involved res judicata in the full sense of that term: In re Staples (1916), 1 Ch. 322; Norton v. Moren, 267 S. W. Repr. (Ky.) 171; Ackerman v. Union and New Haven Trust Co., 91 Conn. 500, 100 Atl. Repr. 22.”

The above language: “And that jurisdiction will never be assumed unless the tribunal appealed to is satisfied that an actual controversy, or the ripening seeds of one, exists between parties, all of whom are sui juris and before the court, and that the declaration sought will be a practical help in ending the controversy: . . . and even then such rights will not be determined unless all parties concerned in their adjudication are present and ready to proceed with the case, so that the judgment rendered will make the issues involved res judicata in the full sense of that term.”

Respondents filed an answer, answering the petition and also raising questions of law that the proceedings cannot be maintained. We are of opinion that this contention must be sustained. All parties that would be affected by our action, if the validity of the contracts referred to is to.be passed upon, are not in court, and the matter, when passed upon, would not be res judicata as to them. Moreover, the legality or illegality of the appointments in the other proceeding made are now in the Superior Court and will be therein determined more expeditiously than can be in this proceeding should it likewise be appealed to the Superior Court.

And now, to wit, Feb. 6, 1928, after due consideration, the petition is dismissed, at the cost of the petitioner.

NOTE.- — See Wells Township School Directors, 10 D. & G. 443.


source: Caselaw Access Project

author: Schaeffer, P. J.,

license: Public Domain

text:
    Commonwealth v. McMullin.

      J. Howard Jacobs, for defendant, petitioner.

      David F. Mauger, District Attorney, for Commonwealth.
    Dec. 5, 1927.
   Schaeffer, P. J.,

This matter is before us upon the petition of Robert James McMullin, praying for the remission of a forfeited recognizance and the return of the $1400 in cash deposited by the petitioner as security for the appearance of the defendant at September Sessions. The recognizance was dated June 24, 1927. On July 15, 1927, said defendant was arrested upon the charge of bigamy in the County of Philadelphia, and on Aug. 8, 1927, tried, convicted and sentenced to imprisonment in the prison of Philadelphia County for the term of six months. The petition now before us was presented on Sept. 12, 1927, the day upon which the defendant was bound to appear. Because of his imprisonment in Philadelphia, the defendant was unable to appear here at the time stipulated, and his recognizance declared forfeited.

The District Attorney of Berks County has lodged a detainer for the said defendant with the Warden of the Philadelphia County Prison.

We believe the rule applicable to this case to be as set forth in 2 Blackstone’s Comm., 341: “If the condition (of the bond) be possible at the time of making it, and afterwards becomes impossible by. the act of God, the act of law or the act of the obligee himself, there the penalty of the obligation is saved.” See Com. v. Moran, 58 Pa. Superior Ct. 362, 369. In our case, the defendant, James McMullin, was in prison in Philadelphia County under sentence imposed by a court of this Commonwealth on the day on which he was bound by his recognizance to appear here for trial. It is plain, therefore, that the default in appearance must be attributed to an act of the law rather than to any default upon the part of the petitioner who had deposited the money. In view of these circumstances and the fact that a detainer has been lodged with the warden of the Philadelphia prison for his surrender to officers from this county upon termination of his Philadelphia sentence, we believe this to be a case where the forfeiture should be remitted, and the cash repaid after deduction of costs thus far incurred in the case and of a sum sufficient to defray the expenses of officers to be sent to Philadelphia to receive the prisoner, for the condition of the recognizance required the defendant’s appearance in this court and not in Philadelphia. It is only right, therefore, that the costs of bringing the defendant to this court should be deducted from the money in hand.

As the Act of March 19', 1925, P. L. 49, under which this cash was deposited, authorizes its deposit by the party or parties required to give and enter bail or by any other person or persons in their behalf, the rule requiring repayment to the defendant and not to any other person, as in the cases arising under the Acts of May 1, 1919, P. L. 102, and April 7, 1921, P. L. 118, does not apply.

And now, to wit, Dec. 5, 1927, the Clerk of the Court of Quarter Sessions is hereby authorized and directed to pay to Robert James McMullin the $1400 cash bail deposited with said clerk by said Robert James McMullin to secure the appearance of James McMullin at our court on Sept. 2, 1927, after deducting therefrom (1) his commission for receipting and paying out said moneys; (2) the total amount of all costs now taxable in the case of the Commonwealth v. James McMullin, No. 1, September Sessions, 1927; and (3) the sum of $50 which is to be retained by said clerk to be used to pay the necessary and reasonable expenses, if any, of bringing the defendant, James McMullin, from Philadelphia, Pennsylvania, to Reading, Pennsylvania, to answer the indictment in this case, after which the balance of said sum of $50, if any, shall be repaid to the petitioner, Robert James McMullin.

From Charles K. Derr, Reading, Pa.


author: Landis, P. J.

text:
    Lutz v. Frey.

      E. M. Gilbert, for plaintiff; Harnish & Harnish, for defendant.
   Landis, P. J.

In this case counsel for defendant has filed a paper which is denominated “affidavit to the jurisdiction.” I know of no act of assembly or practice of the courts which permits any such action on his part. I suppose he means to raise a question of law, such as is provided for by section 20 of the Practice Act of May 14, 1915, P. L. 483. The original act did not cover proceedings originating before aldermen or justices of the peace, but by the amendment to that act of April 14, 1921, P. L. 144, it was provided that, “in all actions of assumpsit and trespass, except actions for libel and slander, brought in any Court of Common Pleas, or in any other court or subordinate court, and appealed to said Court of Common Pleas, the procedure shall be as herein provided.” Ordinarily, then the question could be raised under section 20 of the Act of 1915 by an affidavit of defense raising a question of law.

But a subsequent act — that of March 5, 1925, P. L. 23 — -especially provides for eases of this character. Section 1 enacts: “That wherever in any proceeding at law or in equity the question of jurisdiction over the defendant or of the cause of action for which suit is brought is raised in the court of first instance, it shall be preliminarily determined by the court upon the pleadings or with depositions, as the case may require, and the decision may be appealed to the Supreme Court or the Superior Court, as in cases of final judgments.” Section 2 says that “all such preliminary questions shall be raised by petition setting forth the facts relied upon, whereupon a rule to show cause shall be granted and such preliminary question disposed of by the court. Such procedure shall be deemed de bene esse only and shall not operate as a general appearance.”

We are obliged to strike the “affidavit to the jurisdiction” from the record, and this is accordingly done.

From George Ross Eshleman, Lancaster, Pa.


author: Kun, J.,

text:
    Erney v. Philadelphia Rapid Transit Company.

      M. J. Geraghty, for plaintiff; G. H. Detweiler, for defendant.
    Sept. 14, 1928.
   Kun, J.,

The facts in this case are comparatively simple. On Oct. 28, 1926, the space on the south-bound tracks of Fifty-second Street, at Kershaw Street, was excavated and the defendant company was having rails arranged at that point to be moved into position to replace the rails then in use. This condition had existed for three or four weeks on that portion of Fifty-second Street during which the work was being done, which was well-known to the plaintiff, who had an office at the southwest corner of Fifty-second and Kershaw Streets. About 12 o’clock noon on that day plaintiff had parked his automobile at the east curb of Fifty-second Street, near Kershaw Street, since he could not cross with it at that point, and then started to cross westwardly on foot. As he was crossing the excavated street, he saw a number of workmen of the defendant bent over, apparently at work, at the far end of a rail about sixty feet from him north, and the plaintiff was from a foot to a yard from the south end of the rail and there crossed it. The defendant’s workmen were at the time lifting the north end of the rail with tongs. At that moment the tongs slipped out of the hands of one of the workmen, which caused the load to be thrown on the other men, whose holds also slipped, causing the rail to tilt over and fall against the plaintiff’s heel, causing him serious injury.

The trial judge took the view that, regardless of the question of negligence in this case, the plaintiff was barred from recovery on account of his contributory negligence in disregarding an obviously potential danger. He saw the defendant’s men working on the far end of the rail, which he was about to cross. He was near the extreme other end of it. By stepping either a foot or a yard to the south he could have passed around the rail in entire safety. Instead, he chose to step over it at a time when he saw men at the other end of it apparently working on it. According to his witnesses, the defendant’s men were actually lifting the rail with their tongs.

On the question of negligence, there is no evidence in the case on which a finding of negligence on the part of the defendant could he based. The only thing we have is testimony that, as a number of defendant’s workmen were lifting the rail in question with tongs, one of the tongs slipped from the hands of one of the workmen. No carelessness was shown in the employment of the workmen or in the manner of their work. It was a sort of an occurrence not at all unusual in work of that kind. However that may be, it is clear to the court that the plaintiff, in undertaking to step over the rail while the defendant’s men were working on it, and, indeed, lifting it at one end, when he could have avoided all possibility of danger by stepping around the end of the rail a foot or a yard away, is barred from recovery on account of his own, or contributory, negligence.

When the facts are simple, and the evidence by which they are presented is involved with no uncertainty, their legal value is for the court to determine: Wolf v. Phila. E. T. Co., 252 Pa. 448.

“A duty rests upon every one to exercise his intelligence; and when a situation suggests investigation and inspection in order that its dangers may fully be disclosed, he is under the obligation of investigating and inspecting. The presumption is that one will see and understand all perils that a prudent and intelligent person of the same age and experience, and with the same capacity for estimating their significance, would see and understand, and if he neglects to observe, and consequently remains in ignorance of, discoverable dangers, the fault is deemed to be his own. He will be held to have had knowledge of all such dangers as may be shown to have been obvious or patent:” 20 Euling Case Law, §§ 98 and 99, page 111, in which Pennsylvania cases are cited.

The motion to take off the non-suit was properly overruled.


author: Martin, P. J.,

text:
    Leis v. Essig et al.

      J. P. Fogarty, for plaintiff; R. W. Archbald, Jr., for defendants.
    July 23, 1928.
   Martin, P. J.,

On March 3, 1902, a certificate of membership in the Most Excellent Assembly of the Artisans Order of Mutual Protection was issued to John Essig, providing for the payment upon his death of $1000 to Louisa Essig, his wife, if he had fully complied with all the pro-, visions of the charter and laws of the Order affecting his claim for benefits, whether of the Most Excellent Assembly or a subordinate assembly of which ■he was a member, in force at the time of his death. It was stated in the certificate that it was granted by the Order and accepted by John Essig upon the express condition that it should be subject to all the laws of the Order in force at the time of his de®f'-

Louisa Essig, the beneficiary named in the certificate, died in the lifetime of John Essig, who, on March 31, 1920, endorsed upon the certificate:

“I, John Essig, to whom the within beneficiary certificate No. 11692 was issiied, hereby return the same and now authorize and direct the payment of the benefits due at my death to be made to Thomas J. Leis, relationship to myself of brother-in-law, said change to take effect . . .”

This endorsement was signed by John Essig and William C. Kammerer, Recorder of Progressive Assembly No. 4, and the seal of Progressive Assembly No. 4 was stamped upon it.

A new certificate in the name of Thomas J. Leis as beneficiary was not issued.

On Feb. 25, 1924, John Essig died. No widow or children or issue of a deceased child, parents or grandparents survived him.

Claim was made for the proceeds of the certificate by the plaintiff, Thomas J: Leis, as substituted beneficiary, and by the defendants, a brother of the whole blood and brothers and sisters of the half-blood óf John Essig.

A petition was filed by the Most Excellent Assembly of the- Artisans Order of Mutual Protection for leave to pay the fund, less a counsel fee of $25, into court, and for an order on the claimants to interplead. The prayer of the petition was granted and $9Y5 was paid into court. In the issue framed, Thomas J. Leis is plaintiff. The brother of the whole blood and brothers and sisters of the half-blood of John Essig are defendants.

To the statement of claim filed by plaintiff there is annexed a copy of the certificate of membership of John Essig, with the endorsements. The death of the wife, who was the original beneficiary, is averred, and that an order was signed by John Essig to substitute his brother-in-law, Thomas J. Leis.

It is averred that the Most Excellent Assembly No. 4 of the Artisans Order of Mutual Protection accepted the designation of the substituted beneficiary, as appears by the endorsement on the certificate. Plaintiff claims the money should be paid to him.

An affidavit of defense was filed on behalf of defendants, averring that the certificate provided that before his death John Essig must have fully complied with all the provisions of the charter and laws of the Order affecting his claim for death benefits, whether of the Most Excellent Assembly of the Artisans Order of Mutual Protection or the subordinate assembly of which he was a member, in force at the time of his death; and the certificate was granted by the Order and accepted by John Essig upon the express condition that it was subject to all laws of the. Order in force at the time of his death; that Thomas J. Leis, the brother-in-law of John Essig, under the laws of the Most Excellent Assembly of the Artisans Order of Mutual Protection, could not be named as beneficiary; and it is denied that Progressive Assembly No. 4 of the Artisans Order of Mutual Protection accepted the designation of the substituted beneficiary by written endorsement on the certificate. The signatures of John Essig and William C. Kammerer, the Recorder of Progressive Assembly No. 4, are admitted to be genuine, and it is admitted that the recorder affixed the seal of the assembly; but it is averred the Superior Body of the Most Excellent Assembly of the Artisans Order of Mutual Protection refused to issue a certificate to Thomas J. Leis, or to recognize him as a beneficiary, because the laws of the Order prohibited'the designation of a brother-in-law as beneficiary.

The defendants claim the fund as the only surviving brothers and sisters of John Essig.

Under new matter in the affidavit of defense, it is averred that Fabian Essig is a brother of the whole blood, and Franz George Essig, Adolf Essig, Ottilie Rieger, Rosa Sprenger and Anton Essig are brothers and sisters of the half-blood of John Essig; and that John Essig left no widow, children, or issue of a deceased child, or parents or grandparents, but died leaving surviving him the defendants, who are all his brothers and sisters; that the Most Excellent Assembly of the Artisans Order of Mutual Protection is a fraternal beneficial society, duly incorporated under the laws of Pennsylvania, to pay, in case of the death of any member, to the proper beneficiaries of such deceased member such amount of money as shall be prescribed by its by-laws.

It is averred that Thomas J. Leis, a brother-in-law of John Essig, was not dependent upon John Essig; and that section 1 of the Act of April 6, 1893, P. L. 7, provides:

“That it shall be lawful for any corporation, society or voluntary association now or hereafter formed or organized and carried on for the sole benefit of its members and their beneficiaries and not for profit, to have and create subordinate lodges with ritualistic form of work and a representative form of government, and to issue certificates of membership, make provision for the payment of benefits in case of sickness, disability or death of its members, which payment of death benefits shall he to family, heirs, blood relatives, affianced husband or affianced wife, or to persons dependent upon the member.

“Such corporation, society or voluntary association . . . shall be and is hereby declared to be a fraternal beneficial society and shall be governed by this act.”

It is further averred that the laws of the Artisans Order of Mutual Protection in force at the time of the death of Louisa Essig and at the time of the death of John Essig provided:

“(56) Sect. 2. Each applicant shall enter upon his application for beneficiary certificate the name or names of the beneficiary or beneficiaries to whom he desires the benefit paid, and the name or names shall be entered in the beneficiary certificate by the Most Excellent Recorder, subject to such future disposal of the benefits as the member, in accordance with the laws of the Order, may thereafter direct. Provided, that no certificate can be made payable to the estate of the members, and that no persons shall be named as beneficiaries unless they bear one of the following relation to the member: wife, children, grandchildren, great-grandchildren, great - great - grandchildren, parents, grandparents, great-grandparents, great-great-grandparents, brothers, sisters, aunts, uncles, nieces, nephews, first cousins, half-brothers, half-sisters, children by legal adoption, affianced wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, step-father, step-mother, step-children, persons dependent upon the member. Provided, that if after the issuance of the original certificate the member shall become dependent upon an incorporated charitable institution, he shall have the privilege, with the consent of the Board of Directors, to make such institution his beneficiary.

“(57) Sect. 3. Members may at any time surrender their beneficiary certificates and have new ones issued payable to such beneficiary or beneficiaries as they may direct,, subject, however, to the provisions of Par. 56 of this Article; such changes to be made by signing the blank for that purpose upon the reverse side of the old certificate, which signature must be attested by the Recorder of the Subordinate Assembly and have the seal of the Subordinate Assembly attached.”

It is averred that after Thomas J. Leis was designated by John Essig as beneficiary, the certificate was sent to the Most Excellent Assembly of the Artisans Order of Mutual Protection, the Superior Body of such Order, which alone has the right to issue certificates and approve designations of beneficiaries, and the said Most Excellent Assembly of the Artisans Order of Mutual Protection refused to issue a certificate to Thomas J. Leis as beneficiary or to recognize him as a beneficiary because of the laws of the Order and of the Commonwealth of Pennsylvania.

Plaintiff filed a reply to the new matter contained in the affidavit of defense, in which he averred “that under paragraph 57, section 3, of the by-laws of the Most Excellent Assembly of the Artisans Order of M'utual Protection, the designation of plaintiff as substituted .beneficiary in the certificate was consummated by the signature of John Essig and attestation of the Recorder of the subordinate Assembly, as appears by the copy of the certificate with substitution of beneficiary designated thereon attached to the statement of claim;” that the “said certificate was not sent to the Most Excellent Assembly of the Artisans Order of Mutual Protection, and the order did not-refuse to issue a certificate to Thomas J. Leis or refuse to recognize him as beneficiary;” and that “the defendants in this interpleader cannot take advantage of any irregularity or informality or of any violation of the by-laws of the Most Excellent Assembly of the Artisans Order of Mutual Protection, if such exist, in this case.”

The present motion is for judgment for want of a sufficient reply to new matter in defendants’ affidavit of defense.

In support of the motion, it is urged that it appears in the new matter, and is not denied by plaintiff in his reply, that he was not eligible for selection as a beneficiary. The pleadings show that only a certain class of persons can be designated as beneficiaries, and that plaintiff, a brother-in-law, is not in that class.

The by-laws provide in the event of death of the beneficiary selected by the member before his death, if no other or further disposition be made thereof in accordance with the provisions of paragraph 56 of the by-laws, the benefit shall be paid to “the widow, the children . . . parents, sisters and brothers of the deceased member, in the order named.”

The pleadings show that the original beneficiary, who was his wife, predeceased John Essig, and that no other or further disposition was made in accordance with the provisions of paragraph 56 of the by-laws; that plaintiff could not be selected; and that fhe defendants, who are the brothers and sisters of the deceased member, are the only parties within the designated class.

The case is ruled by Grant v. Faires, Executor, 253 Pa. 232, 237, in which it was decided that: “Payment to a stakeholder, or into court, of the fund for which there are rival claimants, to await the legal adjudication of their respective claims, does not constitute a waiver of the rights of either party;” and “on the death of a member his certificate ripens into a legal obligation against the society, which it can only discharge by payment to the right party. And if in such case the society admitting its liability on a membership certificate, for which there are rival claimants, by agreement pays the amount due thereon . . . into court, that the rights of the claimants may be adjudicated, the fund takes the place of the society’s liability, and the rights of the claimants are unchanged. Disposal thereof must be made according to the rules of the society and the law of the State. To hold otherwise is to ignore the very object for which the fund is deposited, to wit, the ascertainment of its legal ownership; not the waiver of rights, but their adjudication.”

In the present case there is no contract by John Essig to designate plaintiff as a beneficiary, and plaintiff paid no consideration in reliance upon a contract. He bore no relation to John Essig which qualified him to be designated as a beneficiary.

Counsel for plaintiff argued that there is no provision in the Practice Act or its amendments for entering judgment for want of a sufficient reply to new matter in an affidavit of defense.

Section 2 of the Practice Act of May 14, 1915, P. L. 483, as amended in section 2 of the Act of March 30, 1925, P. L. 85, reads: “The pleadings shall consist of the plaintiff’s statement of claim, the defendant’s affidavit of defense, and, where a set-off or counter-claim or new matter is pleaded, the plaintiff’s reply thereto. When the affidavit of defense, or, where a set-off, or counter-claim, or new matter is pleaded, the plaintiff’s reply thereto is filed, the pleadings shall be closed and the case shall be deemed to be at issue, and no replication or formal joinder of issue shall be required.”

Section 17 of the Practice Act provides: “When the defendant sets up a set-off or counter-claim, he may move for judgment against the plaintiff for want of a reply, or, for want of a sufficient reply, to the whole or any part of the set-off or counter-claim; and the court may enter judgment in favor of the plaintiff or the defendant for such amount as shall be found due.”

The case is at issue, but there is no issue of fact to be submitted to a jury. The issue is one of law, and the present motion may be regarded as a rule for judgment upon the whole record.

Judgment should be entered against the plaintiff and in favor of defendants. The legislation applicable to the case and the by-laws of the Order are set out in the pleadings. Plaintiff is admittedly not within the class of persons entitled to become a beneficiary and to have a certificate issued to him.

And now, to wit, July 23, 1928, it is ordered that judgment be entered against the plaintiff, Thomas J. Leis, and in favor of defendants, Fabian Essig, Franz George Essig, Adolf Essig, Ottilie Rieger, Rosa Sprenger and Anton Essig.


author: Fleming, P. J.,

text:
    Hartswick v. McIntyre.

      John G. Love, for plaintiff.

      S. D. Gettiff (John J. Bower with him), for defendant.
    Jan. 26, 1928.
   Fleming, P. J.,

This is an action in trespass for the alienation of the affections of the plaintiff’s husband, F. W. Hartswick, by the defendant, Nellie K. McIntyre, and comes before us at this time on an affidavit of defense, filed by virtue of the 20th section of the Practice Act of May 14, 1915, P. L. 483, and raises for our consideration the following questions of law:

1. That the plaintiff’s statement does not aver that plaintiff’s husband has separated himself from her nor that the acts of the defendant have caused him to separate himself from the plaintiff.

2. That the plaintiff’s statement, taken as a whole, does not show a cause of action.

In reviewing the plaintiff’s statement, we find that she avers that she is a good, true, faithful and honest woman of good name, fame, credit and esteem among all her neighbors and' others to whom she has been known the whole of her life; that she was married on Oct. 24, 1920, to F. W. Hartswiek, and that there were bom of that marriage three children, the eldest of which is now seven years of age and all of whom are still living; that on or about June 15, 1927, the plaintiff’s husband became acquainted with the defendant, Nellie K. McIntyre, who is a married woman; that immediately the plaintiff’s husband began neglecting his family, spending his nights away from home and associating himself intimately with the defendant; that plaintiff’s husband has stated to the plaintiff that there is no one with whom he has had greater pleasure than with the defendant; that the defendant and the plaintiff’s husband spent the night of June 20, 1927, in the company of each other at the home of the defendant, and, further, that they were seen on the afternoon of June 21, 1927, coming out of a certain woods in Ferguson Township, Centre County, Pa., having spent the greater part of two hours there, and that the plaintiff's husband and the defendant have been seen together at divers other times and places, both in the daytime and at night; that the defendant has publicly stated that she could take care of said plaintiff’s husband in any event.

Having averred the facts above stated, the plaintiff in her statement further avers, referring to the acts and conduct of the defendant hereinbefore mentioned, that the defendant by such acts contrived and wickedly intended to deprive the plaintiff of the society and affections of her said husband, and also to withdraw from her the support to which she is entitled from her said husband, to hurt her good name and to bring upon herself and her family great scandal and infamy by thoroughly alienating the affections of the plaintiff’s husband, depriving her of that support and affections to which she is justly entitled, and avers, further, that she has been thereby deprived of the comfort and society of her husband and has been injured and much hurt in her estate and has also been drawn into great shame, scandal and infamy, and remains much disturbed and disquieted in mind, and that she has suffered great damages.

Counsel for the defendant, in the first reason assigned, complains that the plaintiff’s husband has not separated himself from 'her. From the statement of claim there is no averment to show other than that the plaintiff’s husband is still living under the same roof with her. This alone, however, does not prevent the plaintiff from bringing this action against the defendant. When a spouse actually leaves the common domicile, such leaving is an indication of a breach between the parties, but it is not essential for either of the parties to absent himself or herself from the common domicile in order that an action for alienation of affections may be maintained.' This is clearly shown by the case particularly cited by counsel for the defendant in this matter, Spuhler v. Harbster, 9 D. & C. 263, wherein the court says: “It is not the loss of the wife’s physical presence in the house that alone is to be compensated for; it is the loss of her love, affection, aid, comfort, assistance, all embodied in the term ‘consortium.’ It might just as well be argued that one who had suffered tKe loss of the affections of a wife, unable, by reason of physical disability, to render services, could not recover because one of the elements regarded as with the others making up the whole, which in the law is embodied in the term ‘consortium,,’ was lacking.” What is true of a wife is likewise true of a husband. The term “consortium” appears by good authority to consist of the right to the conjugal fellowship of the opposite party and his or her company, co-operation and aid in every conjugal relation. In the instant case, counsel for the defendant objects to the statement of claim filed for the reason that it does not distinctly aver that the plaintiff’s husband has separated himself from her. To hold that the statement of claim was insufficient for this reason would be to hold contrary to the accepted thought and meaning of the word “consortium,” In the statement we find a number of specific averments indicating that the plaintiff’s husband has departed from the path of marital rectitude and that the plaintiff no longer enjoys his love, affection, aid, comfort or assistance in any degree. Whether this departure is due or not to the acts of the defendant, as is also specifically averred in plaintiff’s statement, is not our concern at this time. The fact that he remains under the same roof with his wife is not sufficient in itself to render the statement void.

The case cited by counsel for the defendant, Spuhler v. Harbster, supra, offers sufficient authorities to show beyond any doubt that this plaintiff may maintain an action against the defendant for the mere wrongful alienation of her husband’s affections, although he has not been enticed away, and that an alienation of a husband’s affections for which the law gives redress may be accomplished notwithstanding his continued residence under the same roof with the wife, the reason being that the injury consists in the alienation of the husband’s affections, with malice or improper motives and the debauchery and the elopement when they occur, are only the immediate consequences of the wrong: 13 Ruling Case Law, 1467-1468, paragraph 517; Foot v. Card, 58 Conn. 1; 18 Atl. Repr. 1027; 6 Annotated Cases, 663.

It is contended, further, for the defendant that the statement does not show that the acts of the defendant have caused plaintiff’s husband to separate himself from plaintiff. This is not required, as has just been shown. The plaintiff avers that the dfefendant, by the acts averred and imputed to the defendant, has “contrived and wickedly intended to deprive the plaintiff of the society and affections of her said husband ... to hurt her good name, and to bring upon herself and family great scandal and infamy by thoroughly alienating the affections of the plaintiff’s husband. . . .” This is certainly a specific averment of the tortious act sufficient to support the statement.

The case of Stewart v. Hagerty, 251 Pa. 603, cited' by counsel for the defendant in an attempt to indicate that plaintiff’s statement does not show that the defendant was the pursuer of the husband and to raise the inference that the plaintiff’s husband, of his own volition, or from some cause other than the act of the defendant, has brought about the condition existing between the plaintiff and her husband, does not appear to be a ruling case upon the question of the sufficiency of the plaintiff’s statement. This case is concerned only with the sufficiency of evidence offered to prove the plaintiff’s allegation.

It has been held in Cauldwell v. Neilson, 2 D. & C. 749, that in an action to recover damages for the alienation of the affections of one’s spouse, it is unnecessary to recite the acts which induced or resulted in the alienation. It has been further said that such a recital would be contrary to section 5 of the Practice Act of May 14, 1915, in that it would require the introduction of matters of evidence into the statement and bring about the averment of conclusions of law. This court in the case of Young v. Baum, 36 Pa. C. C. Reps. 318, decided before the passage of the Practice Act of 1915, held' that when a statement in an action of trespass for the alienation of a wife’s affections did not sufficiently and properly fix the times and places of the alleged tortious acts, the defendant was entitled to a bill of particulars as to such matters, but stated that it “would not require the plaintiff to fix the exact hour and even the exact calendar day or days,” but sought only a statement sufficient to enable the defendant to properly know in advance what the charges would be as to the alleged tortious acts and to give the defendant an opportunity to prepare his defense, should there be any.

In this statement the plaintiff has specifically averred certain things which, to the mind of the court, are much beyond the limits of ordinary social amenities, and she has also specifically averred that this defendant, by reason of the acts mentioned, has alienated the affections of her husband. There is a sufficient degree of certainty in the averments of the plaintiff’s statement to enable the defendant to prepare an affidavit of defense and to offer a defense to the general charge, should she have any.

The variance in date set forth in paragraph 9 of the plaintiff’s statement, wherein it was alleged that the defendant and plaintiff’s husband were seen on the afternoon of June 21, 1921, coming out of a certain woods, is so plainly a typographical error (and was so indicated by counsel for the plaintiff upon the argument of this ease), as to warrant immediate amendment so that the said date shall read June 21, 1927, and such amendment is accordingly allowed.

And now, to wit, Jan. 26, 1928, the questions of law raised by the affidavit of defense are decided against the defendant and the defendant is directed to file an affidavit of defense to the averments of fact contained in plaintiff’s statement within fifteen days from this date.

From S. D. Gettig, Bellefonte, Pa.


author: Hargest, P. J.,

text:
    Compton, Trustee, v. International Harvester Co. of America.

      Metzger & Wickersham, for plaintiff; John R. Geyer, for defendant.
    March 5, 1928.
   Hargest, P. J.,

The plaintiff filed his bill in equity, averring that the Keystone Tractor and Implement Company was adjudged a bankrupt on Nov. 11, 1924, and that on Aug. 18, 1926, he caused a summons in trespass, in the nature of a trover and conversion, to be issued against the defendant in this court, because of the removal, by the defendants and its agents, of certain property owned by the bankrupt during the months of September and October, 1924, from the stores of the bankrupt located in the Cities of Harrisburg and York, and in the Borough of Palmyra, without the consent of ±he bankrupt. The bill prays for a discovery. Preliminary objections were filed to 'the bill, averring that the plaintiff had a full, complete and adequate remedy at law, and that the plaintiff was not entitled to relief or discovery because the matters were so charged as to permit the defendant, its officers and agents, to avail themselves of their constitutional right not to give evidence against themselves. While the matter was pending before us, the plaintiff filed his petition asking leave to amend the bill by adding the ninth paragraph as follows: “That your orator has secured an order from the District Court of the United States for the Middle District of Pennsylvania, to No. 4830 in bankruptcy, wherein it is decreed that the defendant shall appear before your Honorable Court and answer the interrogatories attached hereto, a copy of which order is attached hereto and marked Exhibit B.” We permitted this amendment, whereupon the defendant filed preliminary objections to the amended bill. The first two were the same as previously filed. The third was to the effect that the amended bill did not set out the order of the District Court made April 13, 1927, many months after the filing of the original bill; the fourth, that the rights of the plaintiff under the order of the District Court were not in existence at the time of the filing of the bill; the fifth, that there was no jurisdiction or authority in the District Court to make the order, and that the defendant is not a person within the meaning of section 21-a of the Bankruptcy Act.

1. Has the plaintiff a complete and adequate remedy at law? Section 21-o of the Bankruptcy Act of 1898 provides: “A court of bankruptcy may, upon application of any officer, bankrupt, or creditor, by order require any designated person, including the bankrupt and his wife, to appear in court or before a referee or the judge of any state court, to be examined concerning the acts, conduct, or property of a bankrupt whose estate is in process of administration under this act.”

As to this provision of the Bankruptcy Act, the defendant seems to be blowing both hot and cold. It contends that the Bankruptcy Act furnishes an adequate remedy at law, but it also contends that the words “any designated person” do not include a corporation. If these words do not include a corporation, then the defendant, being a corporation, is not within the act, and it follows that this provision of the bankruptcy law is not an adequate remedy at law. We adopt the construction which the defendant has urged upon us, that these words do not include a corporation. We think the section quoted is in aid of the administration of the Bankruptcy Act. It is to enable the bankruptcy court to secure evidence for the administration of bankrupts’ estates. Corporations cannot testify; only individuals testify, and, therefore, it follows that this furnishes no adequate remedy at law. Without this section of the Bankruptcy Act, we are not convinced that there is any adequate remedy.

The plaintiff contends that the bankruptcy court is a court of equity (Bardes v. Hawarden Bank, 178 U. S. 524; 1 Collier on Bankruptcy (13th ed.), 39; 7 Corpus Juris, 27), and, being in one court of equity, he cannot be compelled to go into another court of equity for his remedy. We are, however, inclined to believe that “equity will not interfere where an adequate remedy is afforded ... in bankruptcy:” 21 Corpus Juris, “Equity,” § 34. This statement seems to be supported by the English authorities, but our search has revealed no American case supporting it.

The plaintiff has brought a suit in trespass in this court. This bill is in aid of the administration of justice in this court. There is no suggestion that the plaintiff had no right to bring his suit in trespass. Assuming that he had a right to sue, we can see no reason why he should be sent to another court to secure the evidence to prosecute his claim in this court. Discovery in aid of a suit at law is favored in equity: Lesser v. Henry, 50 Pa. Superior Ct. 440, 444. To induce equity to refuse its aid to a suitor, it is not sufficient that he may have some remedy at law, but his remedy must be adequate, complete and effective: Shaffer v. Hoke, 1 D. & C. 452, 454; Lehigh Valley R. R. Co. v. Graham, 64 Pa. Superior Ct. 437, 450.

A bill in equity will be sustained on the ground that it is the most convenient and effective remedy, aqd this is so when the remedy at law is inconvenient and of doubtful adequacy: Brush Electric Co.’s Appeal, 114 Pa. 574; Conemaugh Gas Co. v. Jackson Farm Gas Co., 186 Pa. 443; Apollo Trust Co. v. Safe Deposit and Title Guaranty Co., 31 Pa. Superior Ct. 524. So we think that to send the plaintiff out of this court into the bankruptcy court to secure the evidence to be used in this court is “obviously inconvenient.” That it is of doubtful adequacy we have already pointed out, because, if the Act of Congress does not apply, the plaintiff might not get the information, even though he attempted to get it in the bankruptcy court.

2. The second reason against the sufficiency of the bill is that the bill charges a criminal offense, and that the plaintiff is not entitled to the relief sought because the matters are so charged that the officers, agents and employees of the defendant may avail themselves of their constitutional right not to give evidence against themselves.

We recognize that it is a sound proposition that no one is bound to answer in a court of equity so as to submit himself to punishment, and if a bill requires such an answer, the defendant is not bound to make it: - Bank of United States v. Biddle, 2 Parsons, 31; O’Connor v. Tack, 2 Brewster, 407; Sheipp Manuf. Co. v. McConnell, 17 Dist. R. 749. But this is not such a case. This bill does not necessarily charge a crime. It may well be that if property of the bankrupt was taken, as the bill avers, it was done under a claim of right, and, therefore, the bill does not necessarily require an answer that will subject the officers or agents of the defendant to penalty. Since the bill itself does not require such an answer, it is time enough to invoke the constitutional privilege when evidence is called for under which it may be claimed. Moreover, this hill is not against individuals; it is against the corporation. Generally speaking, a corporation cannot commit a crime involving an intent: State of Washington v. Seattle National Bank, 33 Am. Law Reps. 1206, and note; Delaware Division Canal Co. v. Com., 60 Pa. 367; Com. v. Street Pass. Ry. Co., 24 Pa. C. C. Reps. 25; Androscoggin W. P. Co. v. Bethel Steam Mill Co., 64 Me. 441. So it follows that the charges contained in this bill are directed against the corporation and not against any individuals, and the second preliminary objection has no basis upon which to rest.

3. The third, fourth and fifth reasons go to the bill as amended. After careful consideration, we conclude that the bill as originally drawn is sufficient and that the amendment adds nothing to it. In other words, the amendment may be regarded as surplusage. We are inclined to the opinion that a judge of the United States District Court has no power to tell the corporation defendant to appear before this court and answer the interrogatories in an action in equity pending in this court. This court cannot have its powers and jurisdiction either aided or enlarged by an order of a Federal judge. So we think the bill did not need the amendment in order to sustain our jurisdiction, nor do we think the bill has been seriously hurt by the amendment. Our jurisdiction was complete before the amendment was made.

For these reasons, the third, fourth and fifth preliminary objections to the bill are without merit.

Now, March 5, 1928, it is ordered, adjudged and decreed that the preliminary objections to the bill of complaint filed Oct. 4, 1926, and the preliminary objection to the amended bill of complaint filed Sept. 26, 1927, are hereby dismissed. From Homer L. Kreider, Harrisburg, Pa.


author: Hicks, J.,

text:
    Weaver v. Reinhart et al.

      J. O. Ulrich, for plaintiff; R. J. Graeff and D. J. Boyle, for defendants.
    April 23, 1928.
   Hicks, J.,

This is an action of ejectment in which the plaintiff’s declaration and abstract of title were filed on May 10, 1926, in which she seeks to gain possession of lot No. 23 in block “E” on a plan of lots in East Tamaqua on the south side of Hazle Street. The plaintiff claims the right of possession to the said lot of ground in pursuance of the terms of the will of Daniel Weaver, deceased, which in the second paragraph provides: “The lot of ground and block of houses thereon erected, situate on Hazle Street, in the Borough of Tamaqua, I do hereby give and devise to my son, Alvin Henry Weaver, for and during his natural life; he to receive the whole income thereof; after the death of my son, Alvin Henry Weaver, his widow, if then living, shall receive the rents and income of the said property so long as she lives and remains his widow, and after her death or remarriage, then my wife, Angeline, if living, shall receive the rents and income of the said lot and block of houses for her own use so long as she shall live, and it is only after the death of my son, Alvin Henry Weaver, and his wife’s death or remarriage and death of my wife, Angeline, that the said lot and block of houses are to go to and become the property of my son Alvin Henry Weaver’s children absolutely, in equal shares; I value the said lot and block of houses hereinbefore mentioned at $3600; one-third of said sum to be credited to the share of my said son, Alvin Henry Weaver, at the final settlement of my estate, and I do hereby appoint my daughter, Elizabeth E. Rein-hart, Trustee of my said son, Alvin Henry Weaver, and she is to receive and be paid any part or portion of my estate payable to the said Alvin Henry Weaver in money (except the income of the aforesaid lot and block of houses), to hold and to have the same in trust; to invest part or all in real estate or other good investments that she deems best and pay the interest and income accruing thereon, from time to time, as it may accrue, and if the said Trustee finds it necessary she is also empowered hereby to pay any of the principal moneys she has in trust to my said son, Alvin Henry Weaver, or his widow, to keep him or her comfortable during his lifetime, and after his death pay the said income or interest to his widow, if then living and not remarried, and after her death and the death of my wife, Angeline, pay the principal sum to the children of my said son, Alvin Henry Weaver, in equal shares.” The plaintiff is the widow of Alvin Henry Weaver, who died on Sept. 26, 1911. The plaintiff further avers that the said defendants are in possession of part of the said lot on Hazle Street, which they claim they hold under the second paragraph of the last will and testament of the said Daniel Weaver, above recited. The plaintiff further avers that, under the said second paragraph of the will of said Daniel Weaver, she is entitled to the possession of said lot of ground on Hazle Street and the houses erected thereon and to the rents and income therefrom, and that the defendants are occupying the said lot of ground and houses thereon erected without right and in opposition to the many demands made by the plaintiff upon them for the rent and income therefrom; that the said plaintiff is not married and has not been married since the death of her husband, Alvin Henry Weaver. To the declaration the sworn abstract of title is attached, and both in the declaration and in the abstract of title the lot referred to in the second paragraph of the recited will is minutely described. On June 24, 1927, the plaintiff filed a claim for mesne profits against one of the defendants, Elizabeth E. Reinhart, for a definite sum of money, being the aggregate of the rents for the premises in the possession of the defendants for a period of nearly sixteen years, it being alleged that Elizabeth E. Reinhart collected said rents from the defendants. On Jan. 29, 1927, to the plaintiff’s declaration, abstract of title and statement of claim for mesne profits the defendants filed a demurrer. Joinder in demurrer was filed by the plaintiff, alleging two grounds for the overruling of the demurrer; the first of which has been already adversely decided against the plaintiff in this case in an opinion by H. O. Bechtel, P. J., and the writer of this opinion. [See Weaver v. Reinhart et al., 10 D. & C. 676.]

The demurrer of the defendants assigns ten reasons in support thereof, which, for the purposes of decision, may be placed in two groups: (a) To the declaration and abstract of title — (1) (2) action pending in Orphans’ Court involving the same subject-matter between plaintiff and Elizabeth E. Reinhart, trustee, who, in her individual capacity, is one of the defendants in this case; (3) action in assumpsit pending in this court between plaintiff and Elizabeth E. Reinhart, one of the defendants, involving the same subject-matter; (8) failure to show a legal title or a right of possession; (9) the description of the property is defective and indefinite, (b) To claim for mesne profits — (4) claim, insufficient in form and substance, filed without leave of court and is not contained in the declaration and abstract of title; (5) the first two paragraphs of the claim are conclusions of law; (6) claim is for more than allowed by law; (7) claim is for a specific sum, with interest, while it is, in law, in the nature of a trespass.

(b) Demurrer to claim for mesne profits. That portion of the demurrer relating to the claim for mesne profits will be first considered. The claim for mesne profits gives notice that plaintiff desires to recover from Elizabeth E. Reinhart, one of the defendants, who has been collecting them, and to whom the other tenants have paid them, the rents of the property for which ejectment is brought, with interest for a period of almost sixteen years. Although the claim is for more than the statutory period of limitations, this is a matter to be specially pleaded by the defendants, and thus protection may be secured for all but six years: Hare v. Fury, 3 Yeates, 13; Huston v. Wickersham, 2 W. & S. 308; Lynch v. Fox, 23 Pa. 265; Hill v. Meyers, 46 Pa. 15. A claim for mesne profits comprehends the rents and profits accruing during the tortious holding of the defendants which are recoverable as damages. Mesne profits may be recovered in the ejectment suit by way of damages (Boyd v. Cowan, 4 Dallas, 138) up to the time of verdict: Dawson v. McGill, 4 Wh. 230. But the plaintiff must give previous notice of an intention to claim them: Cook v. Nicholas, 2 W. & S. 27; Bayard v. Inglis, 5 W. & S. 465. When one desires to recover mesne profits in an action of ejectment, he should give notice in his declaration or prior to the trial: Act of May 2, 1876, P. L. 95; Alexander v. Shalala, 228 Pa. 297, 300. Certainly, the desire to recover mesne profits in the instant case is sufficiently and plainly exhibited and such profits need not be contained in the declaration and abstract of title, and no leave of court was necessary to give such notice. It is true that the claim is poorly drawn, but it substantially meets the legal requirements of giving notice that mesne profits will be claimed, and failure to state accurately the items of damage is certainly not fatal, since rent, in any event, is the chief element of the damage. The better practice, recommended most generally, is to incorporate the claim for mesne profits in the declaration or bring a separate action while the ejectment is pending, going to trial and judgment after success in the action in ejectment.

“Mesne profits may be claimed in an action of ejectment without any formal averment of a trespass and a continuance of such trespass:” Dawson v. McGill, 4 Wharton, 230; Boyd. v. Cowan, 4 Dallas, 138. The legal effect of the action of ejectment when mesne profits are claimed is, that the plaintiff was in possession of the land in dispute, was ousted by the defendant, and continued to be ousted to the day of trial, evidencing continued trespass, for which, so far as mesne profits are concerned, the jury may award damages to the day of trial: Dawson v. McGill, supra; Boyd v. Cowan, supra. In Dawson v. McGill, supra, mesne profits to the day of trial were recovered without any formal notice to the defendant. The only intimation received by the defendant that damages would be claimed was through a conversation at bar during the course of trial. It was later held that notice must be given in time sufficient to prepare a defense: Cook v. Nicholas, 2 W. & S. 27. The plaintiff may make this claim in his declaration in ejectment or he may proceed under the Act of May 2, 1876, P. L. 95, giving notice, before trial, of his intention to so claim. “In our statutory action of ejectment, mesne profits may be recovered by giving notice of the claim when suit is brought, or after-wards, within a reasonable time:” Carman v. Beam, 88 Pa. 319, now regulated by the Act of May 2, 1876, P. L. 95.

The plaintiff in the action of ejectment on which the present action is partly based brought suit for “the recovery of the possession of said premises from which he has been so unlawfully dispossessed and ejected and for the damages by him sustained.” Under the authorities cited, this statement would be a sufficient notice to the defendant that damages for mesne profits would be claimed to the day of trial. Defendant in the ejectment could not have successfully resisted the introduction of evidence in support of such claim: Parks v. Pennsylvania Clay Co., 60 Pa. Superior Ct. 567, 571.

Warrant for the practice pursued in this ease is found, however, in Rule 18, section 1, of our Rules of Court, which provides: Rule 18, § 1. If the plaintiff in ejectment intends to claim mesne profits, he shall file a statement of the amount claimed and of the time during which he demands said profits, and give notice of the same to the defendant or his attorney by copy of such statement at least thirty days before the trial. On failure so to do, he shall not be permitted to claim mesne profits in that suit.

The fourth, fifth, sixth and seventh reasons assigned in the support of the demurrer are overruled.

(a) Demurrer to the declaration and abstract of title.

Under the will of Daniel Weaver, hereinbefore referred to, Alvin Henry Weaver, his son, for and during his natural life, was given and devised to him “the lot of ground and block of houses thereon erected situate on Hazle Street, in the Borough of Tamaqua ... he to receive the whole income therefrom. . . .” After the death of the said son, his widow, the plaintiff in this case, if then living, “shall receive the rents and income of the said property so long as she lives and remains his widow,” with ultimate remainder “that the said lot and block of houses are to go to and become the property of my son Alvin Henry Weaver’s children absolutely, in equal shares.” By the very terms of the second paragraph of this will, a life estate is given to the son of the decedent in the lot of ground and block of houses, with the right to receive the whole income thereof, and after his death' the rents and income are given to his widow, the plaintiff here, so long as she lives and remains his widow. No trust is created as to this interest of the plaintiff, or her husband before her, although Elizabeth E. Reinhart, one of the defendants, was made trustee under the quoted will for plaintiff and her husband in his lifetime in certain other bequests. It"seems entirely clear from the reading of the will that the lot of ground and block of houses on Hazle Street in Tamaqua, together with the use and enjoyment of the same in rents and income, were intended by the testator to be given to his son, Alvin Henry Weaver, during his life and after his death to his widow, the plaintiff here, during widowhood. Certainly, the bequest of the rents and income of the lot and block of houses for life or during widowhood was the bequest to the plaintiff of the possesssion of the same. The will is silent as to who shall have possession of the lot and block of houses, collect the rents and income thereof and generally administer the same if such possession and rights were not given to the various life-tenants. The second paragraph of the will distinctly states that Elizabeth E. Reinhart, who is appointed trustee for the son, is to receive and be paid no income from the said lot and block of houses. Her trusteeship applies solely and alone to the share of the plaintiff’s deceased son in the estate of his father other than the particular lot of ground and block of houses. We are of the opinion, therefore, that the bequest of the rents and income of the lot and block of houses to the plaintiff during widowhood was the bequest of the possession of the said lot and block of houses, and the right to the immediate possession is sufficient upon which to ground an action of ejectment. The declaration in the fifteenth paragraph sets out that the defendants are occupying the said lot of ground and houses thereon erected without right and in opposition to the demands made upon them. By demurring, the defendants admit these facts.

Sufficiency in law of the declaration must be determined alone from it and the demurrer, and no extraneous matters or facts explanatory of either the declaration or demurrer contained in briefs of counsel may be considered, as they are not a part of the pleadings. The declaration sets out that defendants are in possession of the lot and houses mentioned in the will in opposition to the plaintiff’s claim; the lot is definitely and sufficiently described (Seaman v. Waltemire, 79 Pa. Superior Ct. 366) and the houses occupied by the defendants alleged to be on the lot. We must conclude from the pleadings that these are the houses mentioned in the will, especially since they are on the lot on Hazle Street. The eighth and ninth reasons are, therefore, overruled.

The first, second and third reasons set forth that two other actions, one in the Orphans’ Court and the other in the Common Pleas, are now pending involving the same subject-matter between the plaintiff and one of the defendants as trustee and in her own right. These reasons make the demurrer a speaking demurrer, which is bad. Any demurrer not founded upon averments of the statement is a speaking demurrer, which from the earliest days has been held to be bad (Brownsword v. Edwards, 2 Ves., Sr., 243, 245) and is still so held: Wright v. Weber, 17 Pa. Superior Ct. 451, by Rice, P. J. At ali times the direct rule has been and still is that “courts, including those of probate, cannot in one case take judicial notice of their own records in another and different case, even though the trial judge in fact knows or remembers the contents thereof” (23 Corpus Juris, 113), except, perhaps, in a few rare instances having no relevancy here: Steel v. Levy, 282 Pa. 338. These matters being dehors the declaration will not be entertained, and the reasons are overruled.

The foregoing discussion also indicates the overruling of the tenth reason assigned, to wit, “(10) The declaration, abstract of title and statement of claim for mesne profits are in other respects uncertain, informal and insufficient.”

The declaration and claim for mesne profits are certainly not in good form, but in substance are legally sufficient to call for the defendants’ answer and plea. This case presents in the aggregate an accumulation of bad pleadings, to which, no doubt, this court has contributed when the judgment by default entered in this case on July 26, 1926, was opened, for, under the authority of Rader v. Keiper, 285 Pa. 579, the judgment of default should have been maintained in its full integrity. So that this case may be now brought to an issue, its merits decided and the defendants permitted to offer any defense, if they have such, the demurrer is overruled and permission given the defendants to file their plea, answer and abstract of title.

The demurrer is overruled and the defendants are directed to file their answer, abstract of title and plea within fifteen days from this date, in default of which judgment is directed to be entered upon the pleadings in favor of the plaintiff. Prom M. M. Burke, Shenandoah, Pa.


author: Newcomb, P. J.,

text:
    City of Scranton v. Fass.

      C. B. Little, City Solicitor, for plaintiff; J. G. Sanderson, for defendant.
    Nov. 21, 1927.
   Newcomb, P. J.,

Two complaints against defendants went to judgment of conviction at the hands of the city magistrate. Both were for alleged violation of the city’s zoning ordinance of Aug. 25, 1924. Defendant appealed.

For some reason, not apparent, the clerk caused both appeals to be filed to the same number. To avoid confusion, therefore, the fact is noted that the •one is concerned only with defendant’s omission to take out a permit from the proper bureau when she made certain repairs to her premises hereinafter mentioned; and the other has to do with an alleged non-conforming use to which she devoted her dwelling-house at No. 436 Jefferson Avenue, this city. That is the question to be now disposed of. It is believed to be merely one of fact and free from difficulty.

The premises are within one of the “A” zones, as defined by the ordinance, from which commercial uses are excluded. Admittedly, if defendant turned it to such use, it would offend the terms of the ordinance.

It is contended, first, that the use complained of is not commercial within the meaning of the ordinance; and, second, that the house had already acquired the status of a business place of like character before the date of the ordinance, and was, therefore, excepted from its operation.

Perhaps the two propositions are not quite consistent with each other; but, whether so or not, neither one is well founded in fact.

This block has long been one of the distinctly residential sections of the city. The premises in question had for many years been the home of the late M. H. Dale. Later, it was that of Mathias Stipp, who sold to Mrs. Fass in the summer of 1926. Just when the possession changed hands does not appear. But in the winter of 1927 she was making certain repairs and minor changes in the interior arrangement. She had for years been carrying on a trade in ladies’ gowns, coats, etc., and had gathered a considerable patronage. In the late winter, the repairs being complete, she was ready to open the Jefferson Avenue place. She made announcement accordingly by advertising cards as follows: “Mme. C. Fass extends a cordial invitation to you and your friends to visit the opening of her Fashion Shoppe at her new home, 436 Jefferson avenue, beginning March 5th, where a collection of the newest and smartest modes for spring will be shown.”

Other seasonal advertisements by card appeared from time to time; for example, “Mme. C. Fass, Gowns, Coats, Sportwear, 436 Jefferson avenue.”

A local newspaper of wide circulation carried the following: “Charmeen Coats half price. Beautiful summer gowns. Mme. C. Fass, 436 Jefferson avenue.”

Later, the following: “Clearing out entire summer stock of coats and dresses. Exceptionally low prices. Mme. C. Fass, 436 Jefferson avenue.”

Still later: “Mme. C. Fass offers 15% reduction upon all fall afternoon and evening gowns for the entire week beginning October 17, at 436 Jefferson avenue.”

This is the parlance of the market place. It leaves no room for dispute as to the commercial character put upon her premises by appellant. That the business is carried on in a part of her dwelling-house is a fact of no importance. It is by no means exceptional that a merchant lives with his family under the same roof with his business.

It may be appellant’s judgment had been revised since she bought. At that time she entertained no doubt about the risk she would, take by establishing her business in that house. By her agents she was at pains to express her misgivings to her vendor. By that means she availed herself of his counsel of self-interest. .But such opinion as he is said to have expressed was in well-guarded terms. However, it gives rise to the alternative ground of defense, to wit, that this house had become a business place before the date of the ordinance by reason of vendor’s real estate transactions having been carried on there.

Of this, it is enough to say that it imposed upon appellant the burden of affirmative proof, and she fails to support it by any competent evidence.

It is accordingly adjudged that appellant had incurred the penalty provided by the ordinance underlying the complaint for devoting her premises in question to a non-conforming use; and that for such offense she shall pay a fine of $10 and costs, in default of which she shall undergo imprisonment in the county jail for the period of ten days.

From William A. Wilcox, Scranton, Pa.


text:
    Strasburg Borough v. Alexander.

      K. L. Shirk and John A. Coyle, for plaintiff.

      F. Lyman Windolph, for defendant.
   Landis, P. J.

The plaintiff’s statement avers that the Borough of Strasburg, on petition of a majority in interest and amount representing three-fifths of the ownership in number of feet of property on both sides of Miller Street, by Ordinance approved March 3, 1924, provided for the curbing of said street from the intersection of West Main and Miller Streets to the garage of H. C. Breckbill, and also provided that the said improvement and curbing should be at the cost of the adjoining property owners and should be assessed against and paid by them. This work was done and a cement curb was laid in front of the property of the defendant for a distance of 115 feet. The proportionate share which was assessed against the defendant was $87.35, and the same was demanded of him, but he refused to pay. For this reason, the present suit was brought. The defendant has filed an affidavit of defense raising various questions of law, and he asks that they be found in his favor and judgment entered thereon.

Chapter 12, section 1, of the Act of May 14, 1915, P. L. 312, 426, provides that “boroughs may proceed for the recovery of municipal claims by lien or by action of assumpsit, and jurisdiction is conferred upon justices of the peace to entertain such actions of assumpsit to the amount of $300. . . .” But, even if the magistrate has no jurisdiction, that question cannot be raised by affidavit of defense raising a question of law. The Act of March 5, 1925, P. L. 23, sets forth a specific remedy.

If a ten days’ notice, as it is claimed, is required by chapter 6, article vu, section 10, the present proceeding is improper. There is nothing in the act requiring such notice to be attached to the pleading. We think it can be proven on the trial. But, even if this is a requisite, the defect can be cured by amendment, and the way to reach the defect is by a rule to file a more specific statement and by a rule to strike off the statement. No real good is arrived at by this technical form of procedure, for courts do not, if it is possible to find another way, decide the rights of parties on pure technicalities and without, perhaps, having all the facts before them.

We think the points raised by the defendant should be decided against him, without prejudice to his legal rights.

Prom George Ross Eshleman, Lancaster, Pa.


author: Wagner, Dep. Att’y-Gen.,

text:
    Mortgage Participation Certificates.
    March 22, 1928.
   Wagner, Dep. Att’y-Gen.,

We beg to acknowledge receipt of your request for our opinion relative to the authority of a bank chartered under the Act of May 13, 1876, P. L. 161, to issue mortgage participation certificates, either with or without guarantee.

We understand that it has been the practice for banks so chartered to issue and sell certificates evidencing participation of a designated amount in a mortgage fund established by the bank, the mortgages constituting which are held by the bank as security for the certificates outstanding. In certain cases the payment of the principal and interest of such mortgage participation certificates has been guaranteed by the bank. In some instances the mortgage participation certificates are issued under an agreement or deed of trust specifying the terms and conditions under which the mortgage participation certificates are issued, the rights of the holders thereof and the duties and liabilities of the bank as trustee for the holders of the mortgage participation certificates with relation to the mortgages constituting the fund securing the certificates. In other cases the mortgage participation certificates are in effect merely assignments of a designated interest in a certain mortgage or group of mortgages, the assignment not being recorded and the bank acting as the agent of the assignee in the collection of the interest and principal when due.

Considering, first, the authority of a bank chartered under the above Act of 1876 to issue such mortgage participation certificates without guarantee, it is necessary to distinguish between a bank which has accepted the provisions of the Act of July 17, 1919', P. L. 1032, which grants to banks so chartered the right to act in the same fiduciary capacities in which trust companies organized under the laws of this Commonwealth are permitted to act, and a bank which has not accepted the said Act of 1919.

The issuance by a bank of mortgage participation certificates under an agreement or deed of trust under which the bank assumes to perform fiduciary powers and to act as trustee for the certificate holders is, in our opinion, authorized by the said Act of July 17, 1919, and a bank which has accepted this act is, therefore, authorized to issue such certificates and exercise the fiduciary powers required by the agreement under which the certificates are issued.

A bank which has not accepted the provisions of the above Act of 1919 is, however, not authorized to exercise such fiduciary powers and, therefore, has, in our opinion, no authority to issue mortgage participation certificates under any agreement or instrument which requires the issuing bank to exercise any trust or fiduciary powers. There is no prohibition, however, against the assignment by such a bank of a designated portion or amount of a single mortgage or group of mortgages or the issuance of certificates of participation therein, provided the assigning or issuing bank does not assume any fiduciary or trust powers either under the assignment or the certificates and the agreement or instrument under which such certificates are issued. It will be necessary to determine in each particular case whether or not the bank has assumed the performance of any fiduciary or trust powers.

Considering, next, the authority of a bank chartered under the above Act of 1876 to issue mortgage participation certificates with guarantee, we are of the opinion that such bank is not authorized to guarantee mortgage participation certificates, whether or not it has accepted the provisions of the Act of June 17, 1919-, referred to above. The reasons for this opinion are the same as those set forth in the opinion of Deputy Attorney-General William Y. C. Anderson to the Secretary of Banking, dated Dec. 3, 1926, relative to the guarantee by a bank chartered under the said Act of 1876 of the payment of the principal and interest of bonds secured by mortgages on real estate sold by the bank to its customers. [Banks Guaranteeing Mortgages, 8 D. & C. 599.]

Accordingly, we beg to advise that, in our opinion, a bank chartered under the Act of 1876 is authorized to issue mortgage participation certificates without guarantee in connection with which it is required to exercise fiduciary or trust powers, provided it has accepted the said Act of June 17, 1919; that it is authorized to issue mortgage participation certificates without guarantee in connection with which it is not required to exercise any fiduciary or trust powers without accepting the provisions of the said Act of 1919; but that no bank chartered under the Act of 1876 is authorized, under any circumstances, to issue mortgage participation certificates with guarantee.

From C. P. Addams, Harrisburg, Pa.