Opinion
January 10, 1935.
February 4, 1935.
Pleadings — Petition and answer — Matter heard upon — Admissions — Review upon appeal.
1. Where a matter is heard on petition and answer, without proofs, the moving party must accept as verity the averments in the pleading of his adversary which are well pleaded and pertinent to a consideration of the point to be determined at the particular hearing. [509]
2. On appeal, a decree entered in accordance with this rule will not be disturbed, if an examination of the pleadings sustains the conclusions of the court below. [509] Orphans' court — Practice — Partition — Decree of distribution — Petition to set aside — Laches.
3. A decree dismissing a petition praying for the vacation of a decree of partition of land and asking for a redistribution of the proceeds of the sale thereof in accordance with the claim of the petitioner to sole ownership of the property, was affirmed on appeal, where it appeared from the pleadings that the petition was not filed until almost six years after distribution of the proceeds of the sale had been ordered by the court and after the funds had been actually distributed, and that petitioner was represented by counsel at the hearing after the decree in partition was entered and had not then nor during the course of the proceedings which culminated in the decree of distribution, asserted the claim made in his petition. [508-10]
Argued January 10, 1935.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 342, Jan. T., 1934, by Donato Parisi, from decree and order of C. P. No. 5, Phila. Co., March T., 1926, No. 19490, in equity, in case of Margaret Parisi Di Trolio et al. v. Donato Parisi et al. Decree affirmed.
Petition and rule for vacation of decree of partition.
The opinion of the Supreme Court states the facts.
Rule discharged, opinion by ALESSANDRONI, J. Petitioner appealed.
Error assigned was dismissal of petition, quoting record.
Frank A. Paul, with him Wm. Vincent Mullin, for appellant.
No brief filed nor appearance for appellee.
Appellant presented a petition to the court below praying for the vacation of a decree of partition of land located at 227 North 64th Street in the City of Philadelphia, and asking for a redistribution of the proceeds of the sale thereof in accordance with his claim to sole ownership of the property. An answer was filed by petitioner's daughter and her husband, plaintiffs in the partition proceedings, denying the principal averments of the petition to vacate and praying for its dismissal. A rule to vacate the decree in partition issued, which, after argument by counsel on the petition and answer, without the taking of depositions, was discharged by the court. Petitioner appealed.
The court below properly held that, inasmuch as no depositions were taken, the denial in the answer of all significant averments of the petition was sufficient reason in itself for discharge of the rule. This fact likewise requires us to dismiss the appeal, for the rule is clearly established that, when a matter is heard on petition and answer, without proofs, the moving party must accept as verity the averments in the pleading of his adversary which are well pleaded and pertinent to a consideration of the point to be determined at the particular hearing: Sherwood Bros., Inc. v. Yellow Cab Co., 283 Pa. 488; Marchand v. Marsh, 280 Pa. 292. On appeal, a decree entered in accordance with this rule will not be disturbed, if, as in this case, an examination of the pleadings sustains the conclusions of the court below.
Apart from this, the record discloses adequate reason for denying the relief appellant seeks. The decree in partition was entered pro confesso on July 29, 1926. Subsequently, on August 17, 1926, a hearing was had and appellant was represented by competent counsel. No question was then raised as to appellant's sole ownership of the property involved in the partition proceedings. As stated by the court below, appellant "allowed the public sale of the property to be made without objection, permitted distribution of the proceeds of the sale, petitioned the court to pay him the sum due him, which petition was granted, and, almost six years after distribution was ordered by the court, seeks to vacate the decree of partition or obtain an utterly preposterous decree ordering redistribution of a fund previously distributed many years ago. . . . The petitioner failed to raise any question as to the propriety of the proceedings for a period of eight years and is definitely barred from now raising the question."
The decree is affirmed at appellant's costs.