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KELLEY v. KELLEY (06/27/55)

June 27, 1955

KELLEY
v.
KELLEY, APPELLANT.



Appeal, No. 322, Jan. T., 1954, from order of Court of Common Pleas of Clinton County, Oct. T., 1950, No. 12, in case in Jeannette Kelley v. John P. Kelley et al. Order affirmed. Equity. Defendant's petition under the Act of May 5, 1925, P.L. 23, to declare service void dismissed and final decree entered, opinion by WELLS, P.J., specially presiding. Defendant appealed.

COUNSEL

Leo C. Mullen, with him Morris J. Klewans, for appellant.

Richard S. Oyler, with him Samuel H. Jubelirer and William Hollis, for appellee.

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

Author: Jones

[ 382 Pa. Page 538]

OPINION BY MR. JUSTICE JONES

This appeal, questioning the jurisdiction of the court below, was taken pursuant to the Act of May 5, 1925, P.L. 23, 12 PS § 672. Our review is accordingly limited: Jones v. Jones, 344 Pa. 310, 311, 25 A.2d 327.

[ 382 Pa. Page 539]

The appellant poses two questions, viz., one as to the jurisdiction of the court to grant the relief sought and the other as to its jurisdiction of the defendants. The facts, whereof these challenges are predicated, need be recited.

Jeannette Kelley, the plaintiff, filed her complaint in equity on October 20, 1950, in the Court of Common Pleas of Clinton County seeking an accounting by Robert J. Kelley, one of the defendants, of the profits realized by him from a coal mining operation which he had conducted. The complaint averred that the plaintiff, by testate and intestate succession, had become the owner of an undivided one-twenty-fourth interest in certain coal lands situate in Clinton County as a tenant in common with Robert J. Kelley and seventeen other persons, all of whom were named as parties defendant. The complaint further averred that Robert J. Kelley, in his own behalf and as agent for all of the other tenants in common, had profitably conducted mining operations of the coal lands so held in common; that until October, 1944, Robert J. Kelley had accounted to the plaintiff's predecessor in title for profits realized from the operation; and that since November, 1944, when the plaintiff became a tenant in common, Robert J. Kelley has refused to furnish her with an accounting or to pay over to her any portion of the profits derived by him from the indicated coal mining operation. The complaint prayed the court to "enter an order upon the defendant, Robert J. Kelley, to account fully to the plaintiff, Jeannette Kelley, and to the co-defendants ... in order that the plaintiff may have judgment against the defendant, Robert J. Kelley, for the amount shown to be due her by such accounts, and for such further equitable relief as the Court may deem fit and proper under the circumstances."

[ 382 Pa. Page 540]

Robert J. Kelley and all but two of the other defendants were residents of Pennsylvania, but none of them resided in Clinton County and none was served there with process. The plaintiff, who was also a nonresident of Clinton County, brought her suit there pursuant to Section 24 of the Act of April 25, 1850, P.L. 569, 17 PS § 287-288, which provides that, where one (or more) of several tenants in common has removed coal or other minerals from the land held in common, an aggrieved tenant (or tenants) may, by a bill in equity naming all of the other tenants as defendants, have an accounting, in the court of common pleas of the county wherein the land is located, of the coal or minerals allegedly taken. Pursuant to further authorization of the Act of 1850, supra, the plaintiff obtained an order of the court below permitting service to be made on the defendants within the Commonwealth by any adult person and on the nonresidents by registered mail. Service was made conformably. Robert J. Kelley entered an appearance de bene esse challenging the validity of the substituted service and the jurisdiction of the court to grant the relief sought. A consequent rule on the plaintiff to show cause why the complaint should not be dismissed was discharged, after argument, and Robert J. Kelley brought this appeal.

The only defendant against whom any relief is sought is Robert J. Kelley and the relief so sought as to him is a decree in personam for the plaintiff's share of the profits derived from the mining operation. The initial inquiry, therefore, is whether Section 24 of the Act of 1850 authorizes a proceeding in personam, as ...


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