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SIMPSON v. SIMPSON (06/26/61)

June 26, 1961

SIMPSON
v.
SIMPSON, APPELLANT.



Appeal, No. 126, Jan. T., 1960, from decree of Court of Common Pleas No. 2 of Philadelphia County, June T., 1946, No. 5025, in case of Robert T. Simpson v. Florence E. Simpson. Decree affirmed.

COUNSEL

Walter Stein, with him Josephine H. Klein, and Berger & Stein, for appellant.

Joseph Head, with him Theodore H. Lunine, and Swartz, Campbell & Henry, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Bok

[ 404 Pa. Page 249]

OPINION BY MR. JUSTICE BOK.

This is an action in equity which, like Pope's needless alexandrine, has dragged its slow length along for fourteen years. After such time the integrity of the law itself is in jeopardy, and we will not seek for niceties to impugn the maxim that it is in the interest of the public that litigation shall cease: Sellers v. Hanratty, 343 Pa. 316 (1941), 22 A.2d 697.

The complaint asks an accounting, the return of various property, both real and personal, and incidental adjustments of the affairs between the parties. There is an answer with new matter, and a defendant's request for the return of real and personal property and incidental relief. Testimony was taken in March, 1947, and December, 1948; an adjudication was filed on May 9, 1949; final decree is dated March 16, 1950; accounts were filed by both parties; a master was appointed in February, 1951, to partition certain properties under the decree; an auditor was appointed to audit the accounts; the master in partition reported; the auditor took testimony and reported; the plaintiff died in August, 1956, and an administrator c.t.a. was appointed for him; three appeals were taken to this court, in 1949, 1950, and 1952, and all were withdrawn; the properties were sold to bona fide purchasers for value.

[ 404 Pa. Page 250]

The final decree of the court below in 1950 directed partition of certain properties and an accounting by both parties after May, 1946. This was done and approved, and the balance of proceeds resulting from the partition was ordered into the hands of an auditor. The ultimate decree appealed from confirms the auditor's reports, awards the fund, and fixes costs. This occurred in 1960 and defendant has appealed the overruling of her exceptions to the auditor's reports.

She raises various questions. The first is that the court had no right to order partition because the real estate is not all in the county of the forum; two are in Philadelphia County, one in Montgomery, and two in Bucks. There is no merit in this argument.

The Act of February 20, 1854, P.L. 89, 12 PS § 1767 (clarified by the Act of May 14, 1874, P.L. 156, 12 PS § 1769), provides, pertinently: "All the courts of this commonwealth now having jurisdiction in matters of partition, shall have power to entertain suits and proceedings, whether at law or in equity or otherwise, for the partition of real estate, or the recovery of dower or the widow's third or other part, although the lands to be divided or recovered may lie in one or more counties of this commonwealth: Provided, That such proceeding, intended to embrace lands in more than one county, shall be brought only in the county where a decedent, whose land is to be divided, had his domicile, or where the homestead, or larger part of the estate in value shall be situated..."

This Act was suspended by the Pa. Rules of Civil Procedure, where, in Rule 1552, Venue, it is provided: "An action for the partition of real property, including an action in which the Commonwealth is a party, may be brought in and only in a county in which all or any part ...


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