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HORNSBY ET AL. v. LOHMEYER ET AL. (03/20/50)

March 20, 1950

HORNSBY ET AL., APPELLANTS,
v.
LOHMEYER ET AL., APPELLANTS



Appeals, Nos. 101 and 114, Jan. T., 1950, from decree of Court of Common Pleas No. 2 of Philadelphia County, June T., 1948, No. 4360, in case of Thomas Hornsby, individually and as Executor under Will of Belle P. Hornsby, Deceased et al. v. Lloyd O. Lohmeyer et al. Plaintiffs' appeal quashed; defendant's appeal sustained and bill dismissed; reargument refused March 30, 1950.

COUNSEL

Frederic L. Clark, with him Everett H. Brown, Jr., James F. McMullan and Clark, Brown, McCown, Fortenbaugh & Young, for defendants.

D. Arthur Magaziner, with him Mayer, Magaziner & Brunswick, for Thomas M. Browning, defendant.

Roland J. Christy, for plaintiff.

Before Maxey, C.j., Drew, Linn, Stern, Stearne and Jones, JJ.

Author: Stern

[ 364 Pa. Page 272]

OPINION BY MR. JUSTICE HORACE STERN

Plaintiffs are minority stockholders in the Thurman Manufacturing Company, a Pennsylvania corporation. They brought a bill in equity against the officers and directors, naming the corporation also as a party defendant. The bill alleged fraudulent withdrawals of corporate property for which plaintiffs demanded an accounting and restitution; it complained also of allegedly improper sales and transfers of stock. Defendants filed preliminary objections all of which were sustained

[ 364 Pa. Page 273]

    by the court below with leave to plaintiffs to file an amended bill. Plaintiffs thereupon filed such a bill and again defendants filed preliminary objections; this time the court sustained some of these and dismissed others. Plaintiffs have taken an appeal (No. 114) on the ground that the court improperly limited the period for which defendants should account. Defendants have likewise taken an appeal (No. 101) on the ground that they are not liable to account at all.

Except by statute no appeal lies from an order or decree to account. The Act of June 24, 1895, P.L. 243, as amended by the Act of March 30, 1921, P.L. 60, allows an appeal to the defendant in all cases where the plaintiff prays for an account and the defendant denies his liability to account and the decree of the court, upon this preliminary question of liability, is in favor of the plaintiff. It is not the province of the appellate court under this Act to determine preliminarily what period the account should cover; any objections on that score must await an appeal from the final decree: Betty v. Safe Deposit and Title Guaranty Co., 226 Pa. 430, 432, 75 A. 592, 593; Rowley v. Rowley, 289 Pa. 171, 174, 137 A. 226, 228. This statutory right of appeal is confined to the defendant; there is no provision for appeal by a plaintiff: Lauer v. Lauer Brewing Co., Ltd., 180 Pa. 593, 597, 37 A. 87, 89; Rowley v. Rowley, 289 Pa. 171, 174, 137 A. 226, 227. As far as a plaintiff's non -statutory right of appeal from the sustaining of preliminary objections is concerned, it would lie only if he were denied an accounting and his bill were dismissed, which is not the case here. Plaintiffs' appeal in the present case must therefore be quashed. It may be added, however, that, in the light of what is hereinafter shown to be the fatal inadequacy of their bill, the question raised by plaintiffs' appeal as to the proper period of accounting, is, in any event, wholly academic.

[ 364 Pa. Page 274]

One of defendants' preliminary objections was to the multifariousness of plaintiffs' bill in that it sets forth two distinct causes of action, one, a stockholders' derivative suit seeking restitution of corporate property which the corporation itself had refused to reclaim, the other an action seeking relief for the individual plaintiffs from alleged improper sales and transfers of stock. Joining these two unconnected causes of action in one bill undoubtedly made it vulnerable to defendants' attack on the ground stated: Kelly v. Thomas, 234 Pa. 419, 431, 432, 83 A. 307, 311; Whitney v. Whitney, 296 Mass. 13, 4 N.E. 2d ...


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