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IFFT v. HUNTER. (03/17/64)

March 17, 1964

IFFT, APPELLANT,
v.
HUNTER.



Appeal, No. 203, April T., 1963, from order of Court of Common Pleas of Allegheny County, July T., 1960, No. 1337, in case of James P. Ifft, Jr. v. David Hunter. Appeal quashed.

COUNSEL

Linn B. Washington, with him Shields, Watson & Washington, for appellant.

James P. Ifft, Jr., for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Wright

[ 202 Pa. Super. Page 487]

OPINION BY WRIGHT, J.

Joseph G. Dallas has appealed from an order of the Court of Common Pleas of Allegheny County discharging

[ 202 Pa. Super. Page 488]

    a rule to open a default judgment in an action to quiet title. See Pa. R.C.P. No. 1061 et seq. As will appear from a recital of the procedural situation, the appeal must be quashed.

On May 3, 1960, James P. Ifft, Jr., instituted an action to quiet title against David Hunter, his heirs and assigns. The complaint alleged that, prior to 1900, Hunter became seized of four lots in Wilkens Township, that Hunter's whereabouts were unknown, that Andrew Clark and his wife had secured title to the lots by adverse possession, and that the Clark title had been conveyed to Ifft by deed dated October 7, 1952. The complaint was accompanied by an affidavit under Pa. R.C.P. No. 1064(b), upon the basis of which the court below granted leave to make service by publication. On May 27, 1960, proof of publication was filed, together with an affidavit under Pa. R.C.P. No. 1066. The court thereupon entered a decree requiring the defendants to bring an action of ejectment within thirty days or be forever barred from asserting title in the lots. On June 29, 1960, final judgment was entered.

The present proceeding had its inception on September 6, 1962, when appellant petitioned for a rule to open the judgment. His petition alleged that he had discovered an heir of David Hunter, and had purchased the heir's purported title by deed dated November 7, 1961. Appellant's petition further alleged that the Clarks were tenants and not adverse possessors. Ifft filed an answer denying the material averments in appellant's petition, and raising under new matter the defenses of laches and estoppel. No depositions were taken. On October 30, 1962, following argument before the court en banc, the rule was discharged. On November 30, 1962, upon appellant's petition, one of the members of the court en banc ordered "that this matter be reargued and be placed on the next general argument list". No stay of proceedings was granted.

[ 202 Pa. Super. Page 489]

On June 6, 1963, the order was entered from which this appeal ...


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