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HAUGER v. HAUGER (01/05/54)


January 5, 1954


Appeal, No. 171, March T., 1953, from decree of Court of Common Pleas of Somerset County, 1952, No. 525, in case of Evora Hauger et al., v. Lloyd E. Hauger. Decree affirmed.


Frank S. Lucente, for appellant.

Daryle R. Heckman, with him Shaver & Heckman and Leland W. Walker, for appellee.

Before Stern, C.j., Stearne, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Arnold

[ 376 Pa. Page 217]


This and appeal from a decree confirming the sale of realty by a master in partition. Of the parties only James H. Hauger appealed.

By inheritance from their parents the plaintiffs and defendant become owners, as tenants in common, of the realty made the subject to these proceedings.

It will clarify our views in this case if the non-appealing plaintiffs are disregarded, and if the proceeding is considered as being brought by James H. Hauger alone against Lloyd E. Hauger. We will therefore refer to James H. Hauger as the plaintiff.

On the plaintiff's petition the court issued a rule to show cause why partition should not be had, and made the rule absolute when the defendant neither filed an answer nor entered an appearance. Thereafter

[ 376 Pa. Page 218]

    based upon procedural matters, as to which defects can always be waived: Ciammaichella Appeal, supra; Specktor v. Specktor, 158 Pa. Superior Ct. 323, 44 A.2d 767, "A court has jurisdiction of subject-matter if it is empowered to enter upon an inquiry for the competent hearing and determination of a controversy of such character... The thing of chief importance on a question of jurisdiction of subject-matter is not whether the plaintiff may recover in the particular forum on the cause of action pleaded but whether the court is empowered to hear and determine a controversy of the character involved...": Commonwealth ex rel. Shumaker v. New York & Pennsylvania Company, Inc., 367 Pa. 40, 46, 79 A.2d 439. See also Panther Valley Television Company, Inc. v. Summit Hill Borough, 372 Pa. 524, 94 A.2d 735.

In the Specktor case, supra, it was said at page 325:" "'The objection [here]... is not to the judicial power of the court, but to the mode in which the case is brought before it.'... The court below had power to enter upon the inquiry; this is the test of jurisdiction, generally... The objection does not affect the merits." See Fennell v. Guffey, 155 Pa. 38, 25 A. 785, where the Court determined that the action, while in form assumpsit, was in substance an action of covenant upon the lease, and upheld the jurisdiction of the common pleas, stating at page 40: "When the court has jurisdiction of the subject-matter, and is only restricted from entertaining the individual case by some circumstances peculiar to itself, the objection to jurisdiction may be waived," and held that the defect was waived through failure to object at the proper time. See also Appeal of Louisa Rankin, 95 Pa. 358; Zerbe Township School District v. Thomas, 353 Pa. 162, 44 A.2d 566; Cammaichella Appeal, 369 Pa. 278, 85 A.2d 406; Magee v. Railroad Co., 13 Pa. Superior Ct. 187;

[ 376 Pa. Page 220]

Com. ex rel. Camp v. Camp, 150 Pa. Superior Ct. 649, 29 A.2d 363.

In Pennsylvania Railroad Company v. Bogert, 209 Pa. 589, 602, 59 A. 100, it was said: "But besides the lawful jurisdiction of equity because of the inadequacy and inconvenience of the proceeding by petition under the statute, the objection of respondents to the jurisdiction comes too late. The bill was filed and answer made thereto by each one of the four parties; no one of them raised a question as to the jurisdiction; issue was joined and hearing had, preliminary injunction awarded and afterwards dissolved and bill dismissed... Objection in this case is first made to the jurisdiction in the argument in this court. While objection to the jurisdiction can, generally, be made at any stage of the proceedings, objections to the jurisdiction of the proceedings, objections to the jurisdiction of equity on the ground that the proceedings should have been instituted on the law side of the court, will not be entertained, unless made within a reasonable time after bill filed. 'Whether a case may be brought in the chancery form is only a question of form and not of jurisdiction, and the objection is waived if not made in due season:' I T. & H. Pr. sec. 91."

The plaintiff-appellant was the moving party in the procedure used for the purpose of settlement of the individual interests of the heirs, and he is bound thereby. Even though the steps used are not in the real sense regular, they are not such as to nullify the result. He instituted and accepted them until he found that the result was not to his liking, and he will not now be heard to complain. He submitted to the authority of the master to proceed to sale and partition; in fact the master's appointment was due to his act. The master's actions from appointment to conclusion were regular and in accordance with the law. Cf. Wilson

[ 376 Pa. Page 221]

    v. Mehard, 248 Pa. 325, 93 A. 1061; McDermott v. McDermott, 322 Pa. 455, 186 A. 750.

The plaintiff also made a bid at the sale which he caused the master to hold. The mere fact that the petition included in it a prayer for the partition of personal property is of no moment. If, as we hold, the proceedings were in equity, the partition of personal property was irregular, such a partition being allowable only in the court of common pleas. But the question of partition of the personal property is not involved here.

The plaintiff-appellant having raised no objection until after the sale by the master, although he initiated the entire proceedings, his objections came too late.

The decree is affirmed at the cost of the appellant, James H. Hauger.


The decree is affirmed at the cost of the appellant, James H. Hauger.


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