Appeal, No. 168, March T., 1952, from decree of Court of Common Pleas of Allegheny County, July T., 1950, in Equity, No. 2039, in case of Isabelle D. Nedwidek v. Lewis R. Nedwidek, also known as L. R. Nedwidek, also known as Ludwig Nedwidek, and L. Raymond Nedwidek. Decree affirmed.
John A. Metz, Jr., with him Metz & Metz, for appellants.
T. Robert Brennan, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The primary question raised by this appeal is whether the court below abused its discretion in declining to permit defendant to amend his answer and grant a hearing, after an adjudication had been filed by the trial judge following a hearing on the issue presented by the pleadings. A secondary question was argued as to whether or not the final decree appealed from terminated and ended all litigation respecting the subject matter in dispute.
A wife, plaintiff-appellee, filed a complaint in equity against her husband, defendant-appellant, and against their son, alleging the forgery of her name to deeds which purported to convey title to real estate from her to the son, and praying for cancellation of these deeds and for cancellation of deeds from the son to the husband and wife as tenants by the entirety. Defendant denied that plaintiff's name was forged and averred that he had paid the consideration and that plaintiff merely held the legal title in trust for him
as the equitable owner. The record discloses that defendant in his answer did not raise the issue of the existence of the alleged resulting trust under the heading of new matter, and the plaintiff made no answer to such allegation and did not join issue by a replication. At the trial counsel for both plaintiff and defendants stipulated that the only issue on trial was that of forgery, and the trial judge so stated. He said (p. 252a): "A great amount to evidence was adduced in the record concerning the original acquisition and management of the properties but in view of the limited issues in this case this testimony becomes irrelevant." The trial judge found as a fact that plaintiff's name was forged, and decreed the deeds to be null and void. Pending exceptions defendant petitioned for a rule to show cause why he should not be permitted to amend his answer and to aver, as new matter, the existence of the resulting trust above referred to. The plaintiff answered that in the recited circumstances such permission should be denied; furthermore than by stipulation of counsel it was agreed that the only issue tried was that of forgery and that defendant must be held to have abandoned his defense of resulting trust. The court below so ruled. This appeal followed.
The docket entries disclose that this action was commenced May 24, 1950. The trial was held April 9, 1951, and the adjudication filed September 24, 1951. As the Rules of Civil Procedure in Actions in Equity, Nos. 1501 to 1550 inclusive, were not effective until July 1, 1952, the procedure was under the Rules of Equity Practice of this Court as amended to December 1, 1945.
The pertinent inquiry is what did the equity rules require in order to raise an issue to be determined at the hearing. In this case plaintiff averred forgery. Rule 52 ...