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GOLDSTEIN v. AHRENS. (11/08/54)

November 8, 1954

GOLDSTEIN, APPELLANT,
v.
AHRENS.



Appeal, No. 178, March T., 1954, from order of Court of Common Pleas of Venango County, Aug. T., 1951, No. 1, in case of Lillian B. Goldstein and George S. Goldstein v. Julius H. Ahrens et ux. Appeal dismissed. Proceeding in equity. Order entered dismissing bill and petition, opinion by MCCRACKEN, P.J. Plaintiffs appealed.

COUNSEL

George S. Goldstein, with him Rynd & Olmes and Louis Vaira, for appellants.

Breene, Brewster & Breene, with them McGill & McGill, for appellees.

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

Author: Chidsey

[ 379 Pa. Page 331]

OPINION BY MR. JUSTICE CHIDSEY

On July 17, 1951 the appellants instituted in the Court of Common Pleas of Venango County to No. 1 August Term, 1951, an action in equity against the appellees seeking to restrain the latter from alleged interference with appellants' operations under an oil and gas lease of premises of which appellees had become the owners subject to the lease. In their complaint the appellants also sought damages caused by such alleged interference. During the pendency of preliminary objections to the complaint filed by appellees, the latter caused a judgment in ejectment to be

[ 379 Pa. Page 332]

    confessed, as provided for in the lease, on the ground that appellants had breached a covenant of the lease by their failure to conduct operations for the production of oil for a space of more than 30 days. It was provided in the lease that in case of such cessation of operations the lease and all rights and privileges should immediately terminate and become null and void. Appellants ceased operations on or about November 22, 1950 and had not resumed operations at the time appellees confessed judgment in ejectment against them on November 28, 1951.

Appellants petitioned the court to open the judgment, averring that their continued cessation of operations was due to appellees' interference with their rights, and set forth in their petition the same acts by appellees relied on in their complaint in equity as constituting the alleged interference. The appellees filed an answer to the petition to open judgment and depositions of considerable length were taken. After argument the court found from the testimony that appellants' discontinuance of operations was not caused by any acts or conduct on the part of appellees but was attributable to the failure and neglect of appellants, and discharged the rule to show cause issued on the petition.

Appellants appealed to this Court and on their petition the entire record in the equity suit as well as the record in the proceedings to open judgment were incorporated in the record on appeal and both were considered by this Court. In affirming the order of the court below we held there had been no abuse of discretion in refusing to open the judgment: See Ahrens v. Goldstein, 376 Pa. 114, 102 A.2d 164.

In answering appellants' contention that the court below having assumed jurisdiction in the equity case should have ...


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