Borough of Latrobe vs. Eisaman et al. Borough Ordinance-Violation of Alderman -Summary Conviction Suit was brought before the Burgess of a borough and a conviction had and penalty imposed for the violation of a borough ordinance. The procedure was by summary conviction, from which the defendant appealed to the Common Pleas Court. The plaintiff filed his statement of claim, the affidavit of defense was filed, and after the pleadings were completed, the case was put on the trial list. Fifteen months later it was called for trial and the defendant then moved to quash the appeal, on the ground that it should have been taken to the Quarter Sessions Court. Held that the appeal should have been taken in such a proceeding to the Quarter Sessions, but that the Common Pleas had general jurisdiction of the subject matter and it was at this time too late to object to the regularity of the appeal. Motion to quash appeal. No. 523 May Term, 1913. C. P. Westmoreland County. James B. Weaver and Moorhead & Smith, for plaintiff. H. H. Fisher and Richard D. Laird, for defendants. Dory, J., January 30, 1915.-This case was begun before the Burgess of Latrobe in a proceeding to recover a penalty for the violation of a borough ordinance. On petition of the defendant the court allowed an appeal which was filed in the Court of Common Pleas on 16th April, 1913. The plaintiff filed its statement of claim on 6th September; an affidavit of defense was filed on 6th October, 1913, and on 13th February, 1914, the plaintiff filed a replication. With the case thus at issue it went on the trial list and was called for trial on 8th December, 1914, about fifteen months after the statement of claim had been filed. At this stage the plaintiff moved to quash the appeal on the ground that it should have been taken to the Court of Quarter Sessions and not to the Common Pleas. Without reviewing the legislation bearing on the question, it seems reasonably clear that the pending motion would have been granted, if it had been presented before the pleadings were filed and the preparation for trial had been made. But conceding that the case belongs in the Quarter Sessions it does not follow that the appeal should be quashed at this time. On the other hand, it seems clear that such action should not be taken unless some unbending rule of law so requires. The plaintiff was guilty of inexcusable laches. The defendant was mislead by the pleadings which were filed, and will have an unfair burden imposed, if the appeal be now quashed. On the question before us it is well settled that consent does not give jurisdiction and that want of jurisdiction can be taken advantage of at any stage of a proceeding. These two propositions are established in a long line of cases. But these well-known principles may sometimes mislead unless we have a clear understanding of what is meant by the jurisdiction. of the court and what conditions demand their application. Lowrie, C. J., in Silver vs. County of Schuylkill, 32 Pa., 356, points out how to avoid a confusion of ideas in the use of the word jurisdiction: "Jurisdiction is often confounded with judicial power, or its equivalent, judical competence; yet there is a clear distinction between the terms. The judicial power of a court extends to all those classes of cases which that court may hear and determine. The jurisdiction of a court is confined to cases actually brought before it * * * vests the court with authority to call in the parties, and to bring it to a hearing in some forum, so as to determine the cause in court, though the determination of the case itself may be beyond its competence. The jurisdiction by which a case may be determined is measured by the judicial power of the court, and not by the form in which the case is Borough of Latrobe vs. Eisaman et al. brought before it. This is a question of regularity of practice, and not of power, competence or authority." The distinction thus defined is illustrated in many cases. Schenley vs. Com., 36 Pa., 29, was the case of a scire facias on a municipal claim issued out of the District Court on a statement filed in the Court of Common Pleas and not certified or removed as the statute required. While the regularity of the proceedings seems to have been sustained it was held that "an objection to the jurisdiction of the court, which goes, not to its judicial power, but to the mode in which the case is brought before it, will not avail the defendant, after a general appearance and plea in bar." In Fennell vs. Guffey, 155 Pa., 38, the following question was reserved: "The land being in Westmoreland County, and neither the lessee, Beardsly, nor his assignee, Guffey, ever having entered into possession or done anything on the premises under the lease, can the action be sustained in Allegheny County?" The jurisdiction was sustained on the ground that the Common Pleas of Allegheny County has general jurisdiction in actions of covenant. Putny vs. Collins, 3 Grant, 72, is cited as authority for the principle that "where the court has jurisdiction of the subject matter, and is only restricted from entertaining the individual case by some circumstance peculiar to itself, the objection to jurisdiction may be waived." In Com. vs. Barnett, 199 Pa., 161, a writ of mandamus issued from the Common Pleas Court against a state officer. Although the proceeding was unauthorized it was held that consent gave jurisdiction because the Court of Common Pleas had power to issue such writs. Many other cases along the same line could be cited, but those here given illustrate the principle which is applicable here. Where the court has no jurisdiction over the subject matter the objection can, of course, be raised at any time as in Deihm vs. Snell, 119 Pa., 316, and cases of that class. But where the court has general jurisdiction of the subject matter an objection thereto is waived by appearance or plea. Thus in Com. vs. Barnett, supra, we find this language: "If the writ of mandamus had issued from the Quarter Sessions or the Orphans' Court, the proceeding would be void ab initio for defect of authority in the court to issue such process and determine such controversies. It is of this class that it is commonly said that consent cannot give jurisdiction. nance. In the case before us, the Burgess of Latrobe had original jurisdiction. The suit was to recover a penalty for the violation of a borough ordiThe procedure was in the form of a summary conviction. In such procedure the appeal is regularly to the Quarter Sessions. The Burgess could have proceeded by summons, in which event the appeal would have gone regularly to the Court of Common Pleas. This court has jurisdiction on appeals from judgments of burgesses in suits to recover penalties for violation of borough ordinances, as it has jurisdiction in mandamus and actions of covenant. The objection now does not go to the power of the court but to the form and mode of procedure. The record of the burgess is in form of a summary conviction, but the suit was to recover a penalty. The pleadings proceed as in a civil action. The statement declares that the cause of action is to recover a penalty of $25.00 for the violation of a certain borough ordinance. This statement, as already noticed, was filed 6th September, 1913. As the court has general jurisdiction of the subject matter it is now too late to object to the irregular way in which the suit was brought into this court. And now, January 30th, 1915, the motion to quash the appeal is denied. Schmidt vs. Smith. Lease-Judgment—Opening-Averments. Where defendant's petition for opening a judgment entered on a lease does not squarely allege a surrender of the lease and an acceptance thereof by the agent, and the evidence of such is weaker than the allegation, a rule to open the judgment will be discharged. Sur rule to show cause why judgment should not be opened. D. S. B. No. 835 January Term, 1915. C. P. Allegheny County. J. L. Weldon, James H. Gray, for plaintiff. Blakeley & Calvert, for defendant. HAYMAKER, J., March 27, 1915.—Judgment was entered on warrant of attorney contained in a lease. The material allegations in the defendant's petition are in substance as follows: That defendant consulted E. A. Hess, plaintiff's agent, about April 15, 1914, concerning the leasing of the premises; that before leasing defendant required the papering of two rooms, repairing parlor door, placing new floor in back porch and the erection of new front steps; that he would not execute the lease unless it was agreed that such repairs were made on or before May 1st, 1914; that said agent of the landlord agreed to make such repairs within the time mentioned, and on the faith of said promise he signed the lease and paid the agent $30.00 in advance for the month of May, 1914; that the repairs were not made within the time promised; that on or about April 29th, 1914, he demanded of the agent to be released on account of failure, up to that time, to make those repairs, and that the agent then agreed to accept a surrender of the lease and release the defendant; that he never went into possession; that the premises were rented to another the latter part of November, 1914, and that defendant was not allowed a credit on the judgment for the rentals paid by the succeeding tenant. The answer of the plaintiff is about as follows: That the lease in question was executed March 12, 1914, and provided for the payment of $30.00 on the 15th of April, 1914, for the month of May; that the agent did promise to make certain repairs and the same were made excepting the papering of two rooms, to be selected by the defendant; that defendant failed to make the selection, otherwise the rooms would have been papered; that the agent never agreed to accept a surrender and release the defendant; that defendant requested the agent to obtain another tenant in his interest, as his wife would not move into the premises; that the agent did re-rent said premises on November 27th, 1914, from December 1st, 1914, to April 30th, 1915, at $25.00 per month to one Snyder, and that plaintiff is willing to credit the defendant with the amount of rent reserved in said Snyder lease. The depositions of the defendant and Hess, plaintiff's agent, were taken. In his depositions the defendant admitted that the front steps had been repaired as agreed, and did not know whether the back porch had or had not been repaired as it was a trifling matter. In his depositions he complained only of failure to paper two rooms and fix parlor door. The plaintiff's agent, Hess, testified that all the repairs were made as agreed to excepting the papering of two rooms which was to be done after the defendant took possession. There is certainly nothing in relation to the repairs that would justify us in sending the case to a jury. The defendant's petition does not squarely allege a surrender of the lease and an acceptance by the agent, and his evidence of such is weaker than the allegations of his petition. The agent denied a surrender and acceptance and the circumstances indicate that no legal surrender and acceptance ever took place. The rule is discharged with the understanding that the plaintiff is to enter a credit on his judgment of the amount of rentals collected from Snyder. Hudson vs. Taylor et ux. Injunction Fraudulent Conveyance-Jurisdiction. Where a real estate broker took a promissory note with an endorser in payment of his commission for effecting an exchange of properties, and the maker of the note re-transferred the real estate before judgment was obtained on the note for non-payment, equity has no jurisdiction to enjoin, order a reconveyance or impress a trust for the benefit of creditors on the grantee, who took as an innocent purchaser, as there was an adequate remedy at law. In Equity. No. 211 January Term, 1915. Docket "C." C. P. Allegheny County. W. A. Hudson, for plaintiff. James A. Wakefield, for defendant. STATEMENT CARPENTER, J., February 24, 1915.-The complainant, a real estate broker, was employed by Thomas Taylor, one of the defendants, to sell the Diamond Sanitary Market, a store at No. 240 Diamond Street, Pittsburgh, and on or about June 15, 1914, as a result of his efforts, an exchange deal was made with Mrs. Amelia H. Noone, who with her husband conveyed a tract of land in Ross Township to Frances Taylor, one of the defendants, the Diamond Sanitary Market being transferred to Mrs. Noone. The agent's commission, $250.00, was not paid in cash, a promissory note with an endorser being given instead. This note was not paid. Suit was entered on the note and judgment recovered against the defendant, Thomas Taylor, for $252.70 and $6.97 costs. Execution was issued and returned nulla bona. A transcript of the judgment was then filed in the Court of Common Pleas of Allegheny County. Prior to the filing of this judgment in the Prothonotary's Office the land was sold and conveyed to John M. Arnott. Plaintiff claims that the conveyance to Mrs. Taylor by Mrs. Noone and her husband was so made for the purpose of defrauding the creditors of Thomas Taylor, of whom he, plaintiff, is one. The prayers of the Bill are (a) for an injunction restraining defendants from conveying or encumbering the real estate conveyed to Mrs. Taylor; (b) for a decree directing a reconveyance of the land to Thomas Taylor; (c) or that Mrs. Taylor be directed to hold the land in trust for plaintiff or other creditors of Thomas Taylor; (d) that defendants be required to answer under oath; (e) general relief. FINDINGS OF FACT First. Plaintiff is a real estate agent, and as such was employed by Thomas Taylor to sell or exchange the property known as the Diamond Sanitary Market, and was to receive $250.00 for his services. Second. Plaintiff performed the services required, and received from Thomas Taylor a promissory note for $250.00, which has not been paid. Third. Plaintiff has recovered judgment on said note and filed a transcript thereof in the Prothonotary's Office of this County. Fourth. The land described in the Bill was sold and conveyed by the defendants to John M. Arnott, October 7, 1914, the deed being recorded November 17, 1914. Fifth. There is no evidence that Arnott was not an innocent purchaser, or that he did not pay the full and fair value of the land. Sixth. The land was heavily mortgaged when sold to Arnott, the total cash payment in excess of encumbrances being $1,000.00. Hudson vs. Taylor et ux. CONCLUSIONS OF LAW. First. That the bill and the testimony offered in support thereof are not sufficient to warrant the Court in granting the decree prayed for, or any decree in favor of the plaintiff. Second. That the bill should be dismissed. OPINION. Defendant's counsel insists that the Bill should be dismissed for want of jurisdiction, and contends that this case falls within the rule that where a plain and adequate remedy at law exists the Court will not entertain a bill in equity. This rule is so firmly established that citation of authorities is unnecessary. Plaintiff's counsel do not controvert this contention on the part of the defendants' counsel, but contend that the facts of the case do not bring it within the rule. We do not think it necessary to enter upon any extended discussion of this phase of the case. It will be conceded for the purposes of the case that it falls within the rule, or exception if that term be preferred, suggested by Judge Shafer in the case of First National Bank of Sheraden vs. Murphy, 61, P. L. J., 672. But conceding that equity has jurisdiction where land is held in the name of a third party and in consequence thereto could be sold to an innocent person in fraud of creditors, and may restrain a sale and impress a trust, we are unable to see that this will benefit the plaintiff here. The land in question was in fact sold to an innocent purchaser before the bill was filed, and the Court is powerless to decree a reconveyance as prayed for, or to enforce such a decree if made. There was some evidence to show, or tending to show, that Mrs. Taylor had no interest in the land, that it belonged to her husband, and that because of this she had no right to the $1,000 paid by Arnott. It was also contended that in no event should she be allowed to retain more than one half of said sum, because she was at most the owner of a half interest in the Diamond Sanitary Market. The testimony in respect to the extent of Mrs. Taylor's interest is not clear. That she had an interest in the market, or was a creditor of her husband to the extent of the money put into the business by her is not contradicted. Her claim that she put in her equity in a farm and also $1.500.00 cash is not controverted. At least there is no evidence showing that she did not transfer her equity in land and advance the $1,500 in cash. That she received the $1,000 cash paid for the equity in the Noone farm must be taken as true in the absence of evidence to the contrary. There is some evidence that she received the $1,000 on account of the $1,500 cash, and that she treated this $1,500 as a loan to her husband and not as part of the purchase price of an interest in the market. There is no evidence to warrant the conclusion that the money received by Mrs. Taylor should be impressed with a trust in favor of her husband and co-defendant, or in favor of his creditors. It is therefore ordered that the foregoing findings and conclusions be filed and that a decree nisi be entered sec. reg. directing that the bill be dismissed at plaintiff's costs. |