Appeal, No. 69, Jan. T., 1957, from order of Court of Common Pleas of Lycoming County, Nov. T., 1954, in equity, in case of Texas and Block House Fish and Game Club v. Bonnell Run Hunting and Fishing Corporation et al. Order affirmed; reargument refused April 15, 1957.
Charles G. Gartling, with him John M. Hill, for appellants.
Clyde E. Williamson, with him Williamson & Cupp, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
This is an appeal from an order of the Court of Common Pleas of Lycoming County, sitting in equity, refusing to grant relief from a judgment entered by default.
On November 26, 1954 appellee filed a complaint in equity for the specific performance of a contract to determine a boundary line dispute, a contract which had been executed by appellee and appellants. The complaint - regularly endorsed with a notice to plead within 20 days of service - was served upon appellants on November 29, 1954. No appearance was entered nor answer filed to the complaint. On December 22, 1954 - 23 days subsequent to service of the complaint - appellee filed a praecipe for judgment by default, pursuant to Pa. R.C.P. 1151(a), directing the prothonotary to enter a judgment by default because appellants failed to plead to the complaint.*fn1 On January 12, 1955 - 21 days subsequent to entry of the judgment and 44 days after the service of the complaint - appellee petitioned the Court, pursuant to Pa. R.C.P. 1511(b), for a final decree, and a decree was entered on that
date. It was not until June 2, 1955 - 5 months, 10 days subsequent to the entry of judgment and 4 months, 10 days subsequent to the final decree - that appellants petitioned to open the judgment.
The factual background of this litigation is necessary of recitation. Both appellee and appellants hold title to adjoining unseated lands in Lycoming County. In 1928 appellee built and has since maintained a fire line along what it claims is the proper boundary line between the respective properties. Appellants claim that this fire line is entirely on their land. In an attempt to reach an amicable settlement of this boundary line dispute the parties executed a written agreement on January 26, 1953. This agreement provided that each party was to select and employ a surveyor, that the two surveyors thus chosen were to determine the proper boundary line, that the decision reached by the surveyors would bind each set of parties and that the parties would then execute and record in the Recorder's office in Lycoming County an agreement embodying the line thus established.
In accord with this agreement, the surveyors met upon the land and certified their findings as to the correct line. Appellants, although notified of the findings, refused to abide by their agreement upon the grounds that the findings were irreconcilable with the facts, that the surveyors had acted collusively and that the survey had not been completed. It will be noted that the boundary line fixed by the Court's decree of January 12, 1955 was the boundary fixed and certified by the surveyors.
When appellants filed their petition to open the judgment the court granted a rule on appellee, an answer was filed and depositions were taken. On March 26, 1956 the court ...