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KING v. CLARK. (03/20/57)

March 20, 1957

KING, APPELLANT,
v.
CLARK.



Appeal, No. 232, Oct. T., 1956, from decree of Court of Common Pleas No. 3 of Philadelphia County, in case of Bertha L. King, administratrix, and Bertha L. King v. Alexander Clark. Decree affirmed.

COUNSEL

A. Leon Higginbotham, Jr., with him Norris, Schmidt, Green, Harris & Higginbotham, for appellant.

No argument was made nor brief submitted for appellee.

Before Rhodes, P.j., Wright, Woodside, Ervin, and Carr, JJ. (hirt and Gunther, JJ., absent).

Author: Rhodes

[ 183 Pa. Super. Page 192]

OPINION BY RHODES, P.J.

Bertha L. King, administratrix of the estate of George D. King, deceased, appealed from the dismissal of her complaint in equity to recover a deposit of $800 paid to defendant, Alexander Clark, pursuant to a written agreement to purchase real estate. She also asked punitive damages and sought to enjoin defendant from conveying, mortgaging, or encumbering the premises until her action had been adjudicated.

The complaint was filed November 16, 1954. Defendant preliminarily objected on the ground that there was an adequate remedy at law for the recovery of the deposit. The objection apparently was overruled. After a hearing before the chancellor, the parties submitted their requests for findings of fact and conclusions of law; defendant again questioned the jurisdiction of the court. However, the chancellor retained jurisdiction of the case and filed an adjudication dismissing the complaint on the merits. Plaintiff's exceptions thereto were dismissed by the court in banc, which affirmed

[ 183 Pa. Super. Page 193]

    the chancellor's findings and conclusions and entered a final decree from which this appeal is taken.

It is obvious from the complaint and the subsequent proceedings that this case should have been certified to the law side of the court after objection by defendant. It is actually a suit for the recovery of the deposit by a money judgment; the equitable relief requested is at most subordinate and incidental. See Act of June 16, 1836, P.L. 784, § 13 (VI), 17 PS § 282 (VI); Beato v. DiPilato, 175 Pa. Superior Ct. 602, 106 A.2d 641. Appellant did not proceed for specific performance (see Funke v. Paist, 356 Pa. 594, 52 A.2d 655) or for rescission of the contract because of any fraud, accident, or mistake. There is in the complaint this averment: "12. Defendant is attempting to sell the property in issue and thereby dissipate his assets to prevent plaintiffs from recovering the funds in issue." In itself this is not ground for equitable jurisdiction. The purported insolvency of defendant does not give equity jurisdiction (Heilman v. The Union Canal Company, 37 Pa. 100, 104) unless, of course, the action comes within the provisions of the Uniform Fraudulent Conveyance Act (Act of May 21, 1921, P.L. 1045, No. 379, §§ 1, 10, 39 PS §§ 351, 360). But the allegation in the present complaint is general, vague, and factually insufficient to bring this case within the provisions of the latter act. Moreover, appellant offered no testimony on this matter at the hearing. While it is true that equity will retain jurisdiction for all purposes when it has assumed it for one or more purposes, "this rule does not extend to a case where only some incidental matter is of equitable cognizance, and thereby enable the court to draw in a main subject of controversy which has a distinct and appropriate legal remedy of its own." Graeff v. Felix, 200 Pa. 137, 140, 49

[ 183 Pa. Super. Page 194]

A. 758, 759. See, also, Siranovich v. Butkovich, 359 Pa. 134, 136, 58 A.2d 461; Barth v. Gorson, 383 Pa. 611, 616, 119 A.2d 309. If appellant had pleaded her action within the Uniform Fraudulent Conveyance Act and presented proper proof, the chancellor could have given a money judgment in addition to the appropriate equitable relief. The equitable relief sought was at most incidental to the recovery of the deposit. When it became clear to the chancellor, upon the repeated objection of defendant, that the nature of this action was simply to recover the deposit, it was his duty to certify the case to the law side of the court. Scott v. Scott, 381 Pa. 198, 199, 113 A.2d 217; Pa. R.C.P. No. 1509 (c). See, also, Costa v. Pittsburgh, 177 Pa. Superior Ct. 380, 383, 384, 110 A.2d 884. Naturally defendant has not appealed from the ruling sustaining the jurisdiction of equity for the obvious reason that the ultimate decision was in his favor; the only questions properly before us are those relating to the merits which have been raised by appellant. The chancellor's action in sustaining the jurisdiction of equity is conclusive under the circumstances, and there will be no remand now. ...


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