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BROBST v. BROBST (03/13/56)

March 13, 1956

BROBST
v.
BROBST, APPELLANT.



Appeal, No. 307, Jan. T., 1954, from decree of Court of Common Pleas of Columbia County, Oct. T., 1952, No. 2, in equity, in case of Bertelle B. Brobst v. John C. Brobst. Decree affirmed.

COUNSEL

Nicholas Piazza, for appellant.

Hervey B. Smith and Smith & Eaves, for appellee.

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

Author: Arnold

[ 384 Pa. Page 531]

OPINION BY MR. JUSTICE ARNOLD

Defendant appeals from the decree of the court below, in equity, dismissing his petition to open a decree pro confesso and also making final a decree nisi entered after hearing. His sole contention is that the court had no jurisdiction to try title to realty.

Plaintiff and defendant are husband and wife and are separated. The wife's complaint alleged that she and defendant "are the owners as tenants by the entireties" of designated realty in defendant's sole possession, and that the deeds "have never been recorded and are ... in the possession of the Defendant." She asked, in addition to other equitable relief, for an accounting and an injunction against the removal of Christmas trees and collection of rents.

The complaint was filed and served on November 10, 1952, and on the same day defendant was ruled to produce the deeds, returnable November 12th. No answer having been filed, this rule was made absolute.

On December 8th, by stipulation of counsel, time for answer to the complaint was extended to December 22nd. Thereafter, and until June 1, 1953, time for filing answer was extended on seven more occasions. On June 2, 1953, upon petition alleging that he had been unable to obtain from defendant necessary information for an answer, defendant's counsel was permitted to withdraw, and defendant was again given twenty days to file an answer.

[ 384 Pa. Page 532]

On June 27, 1953, on plaintiff's praecipe under Pa. R.C.P. 1511(a), judgment by default was entered against defendant for failure to plead to the complaint. On July 27, 1953, plaintiff asked for hearing to assess damages and to take testimony for determination of a decree. Hearing having been fixed for August 19th, it was then continued to and held August 26, 1953. Defendant refused to have counsel, and asked that the matter proceed. He failed to produce the deeds to the realty and, called on cross-examination, was not only evasive but conflicting in his testimony as to where the deeds were and in whose names the realty was held.

On December 4, 1953, the court entered a decree nisi which granted the relief sought by plaintiff. Defendant thereafter obtained other counsel who filed exceptions to the decree and on December 14, 1953, and also on February 1, ...


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