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SMITH v. SMITH (11/14/67)

decided: November 14, 1967.

SMITH
v.
SMITH, APPELLANT



Appeal from decree of Court of Common Pleas of Allegheny County, April T., 1962, No. 1687, in case of Gustave S. Smith v. Helen Smith.

COUNSEL

C. M. Janavitz, with him David M. Janavitz, and Janavitz & Janavitz, for appellant.

John A. Metz, Jr., with him Harry H. Rosen, Henry G. Beamer, III, and Metz, Cook, Hanna & Kelly, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Musmanno took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this concurring opinion.

Author: Cohen

[ 427 Pa. Page 536]

This appeal arises out of a decree of the Court of Common Pleas of Allegheny County. The decree was entered by default based upon defendant-appellant's failure to appear at the time of trial. After receipt of the decree, appellant made prompt application to the court below for the issuance of a rule to show cause why the decree should not be opened. The court refused to issue the rule to show cause and the appellant filed the present appeal with our Court.

Plaintiff-appellee, then appellant's husband, commenced an action in equity seeking to enforce an alleged oral trust of real estate against appellant and to compel the conveyance of appellant's home to him, legal title to which, he alleged, was fraudulently vested in appellant.

In the course of the subsequent proceedings appellant has had five attorneys, not including her present counsel, a fact which plays a relevant part in the current problem. We shall simply refer to them by number.

On March 1, 1962, appellant, by her attorneys, No. 1 and No. 2, filed preliminary objections to appellee's complaint. On November 16, 1962, attorneys No. 3 and No. 4 entered their appearance on behalf of appellant. Their appearance was subsequently withdrawn on March 22, 1966. On April 27, 1966, attorney No. 5 entered his appearance for appellant, and on the same date attorney No. 2 withdrew his appearance. On October 14, 1966, attorney No. 5 withdrew his appearance. Thus, after a number of appearances and withdrawals of counsel, the only remaining attorney of record was

[ 427 Pa. Page 537]

    attorney No. 1 who had entered an appearance in 1962.*fn1

On November 17, 1966, the case was listed for trial on the equity trial list, notice of which appeared in the Pittsburgh Legal Journal listing attorney No. 1 as appellant's attorney. The case was called for trial on December 12, 1966, at which time neither the appellant nor any counsel on her behalf appeared. On December 15, 1966, appellee filed a motion for a default judgment for failure of appellant to appear at trial, a request for findings of fact and conclusions of law, and submitted to the court below a proposed decree. Although no testimony on behalf of the appellee appears to have been taken,*fn2 the court below entered the decree as submitted by appellee.*fn3

Appellant's principal contentions are that she didn't receive sufficient notice of the date, time, or place of trial either by the court or appellee's counsel and that the practice of publishing a trial list in the local legal journal is inadequate notice to a defendant who has had a number of attorneys appear and withdraw during the course ...


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