Opinion
December 4, 1936.
January 11, 1937.
Equity — Jurisdiction — Adequate remedy at law — Opening or setting aside judgment.
On appeal from a decree sustaining preliminary objections to a bill in equity which averred that a written compromise stipulation upon which a verdict and judgment were entered against plaintiff and in favor of defendant, his daughter, almost four years before, in a prior action of assumpsit by the daughter against the father, were without consideration and void because the action was false and prosecuted solely to defraud plaintiff, and praying that the judgment entered against him be set aside and sums already paid thereon to defendant be repaid to him, an order was made directing the lower court to certify the proceeding to the law side of the court, on the ground that plaintiff had a complete remedy at law on an application to open the judgment.
Before SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeal, No. 312, Jan. T., 1936, by plaintiff, from decree of C. P. No. 2, Phila. Co., Sept. T., 1935, No. 5637, in case of William F. Dunn v. Madeline C. Hild. Court below directed to certify proceeding to law side of court.
Bill in equity.
The opinion of the Supreme Court states the facts.
Preliminary objections sustained and bill dismissed, opinion by LEWIS, J. Plaintiff appealed.
Error assigned, among others, was dismissal of bill.
Herman Moskowitz, for appellant.
George T. Steeley, William A. Carr and Sidney L. Krauss, for appellee, were not heard.
Argued December 4, 1936.
Plaintiff filed this bill in equity to set aside a judgment entered against him and for repayment of the sums already paid thereon to the defendant. The parties are father and daughter. The latter had sued her father for money she claimed to be due her in connection with the lease of a theatre which the father owned. When the case was called for trial on January 19, 1932, a written compromise stipulation was entered into, signed by the attorneys for both parties and approved in writing by the parties themselves and by the court, as a result of which a verdict was rendered against the father for $12,600, upon which judgment was entered. In the stipulation he waived all right of appeal and agreed that judgment should be entered. The agreement provided that the defendant might pay the judgment in monthly installments. Availing himself of this privilege, the father paid to his daughter $1,884.75 in the time between the entry of the judgment and the filing of this bill on November 4, 1935, a period of more than three years and nine months.
The bill avers that the daughter's suit at law was false and fraudulent; that no cause of action existed in her against her father; that her suit was begun and prosecuted solely to defraud him; that its falsity was known to the daughter at all times; and that, as a legal consequence, the stipulation upon which the verdict and judgment were entered was without consideration and void.
A feature of the litigation between these parties was before us in Hild v. Dunn, 310 Pa. 289.
The chancellor sustained preliminary objections to the bill upon grounds not necessary to be recited, because plaintiff has a complete remedy at law on an application to open the judgment. This is now the established practice. We may add that had the proceeding been by application to open the judgment the reasons assigned by the chancellor for dismissing the bill would apparently operate to prevent its opening.
The court below is directed to certify the proceeding to the law side of the court. Costs to abide the result.