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CLARKE v. GRAHAM ET AL. (11/13/50)

THE SUPREME COURT OF PENNSYLVANIA


November 13, 1950

CLARKE
v.
GRAHAM ET AL., APPELLANTS

Appeal, No. 161, March T., 1950, from decree of Court of Common Pleas of Allegheny County, Jan. T., 1950, No. 228, in case of H. A. Clarke v. F. W. Graham et al. Decree affirmed.

COUNSEL

Robbin B. Wolf, with him Louis Vaira, for appellants.

Mahlon E. Lewis, with him Clyde E. Donaldson and Loyal H. Gregg, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.

[ 365 Pa. Page 543]

OPINION PER CURIAM

This case was correctly determined in the opinion of Judge SOFFEL.

We do not regard this decree, however, as one of default -- pro confesso. We note that a responsive answer was filed to the bill and issue joined. The case then appeared on the equity trial list. The chancellor perceiving that there were no questions of fact raised by the pleadings, but merely questions of law, placed the case on the argument list of the court in banc. This is an irregular practice. A chancellor should first pass upon the case before it is considered, on exceptions, by the court in banc. Curiously enough, before the case was argued before the court in banc, plaintiff and defendant, respectively, made motions under Equity Rules Nos. 55 and 48, raising preliminary objections to bill and answer. Obviously, after a case is at issue, such Equity Rules, relating to preliminary objections, have no application. Such errors in procedure, however, are harmless in this case and do not necessitate recommittal for the purpose of correction.

Decree affirmed. Costs to be paid as directed by the court below.

Disposition

Decree affirmed. Costs to be paid as directed by the court below.

19501113

© 1998 VersusLaw Inc.



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