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.
OPINION BY MR. JUSTICE ARNOLD
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
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 ...