Weigley v. Coffman

22 A. 919, 144 Pa. 489, 1891 Pa. LEXIS 634

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: October 26, 1891
• Docket: No. 236
• Status: Published

Opinion

Opinion,

Me. Justice .Clark :

This bill is for an account of the firm of C. B. & G. A. Miller. The partnership was formed in November, 1878, and continued until the decease of Charles B. Miller, who died November 13, 1884. Grace M. Coffman is the surviving executrix of his last will and testament. G. A. Miller, the surviving partner, died January 12,1888, and letters testamentary on his will were issued to W. W. Weigley.

No settlement of the partnership affairs was had in the lifetime of Charles B. Miller. After his death, however, George A. Miller, the surviving partner, filed his bill for an account in the Court of Common Pleas No. 3 of Philadelphia, setting forth .that at .the death of said Charles B. Miller the clear profits amounted to a sum not less than $35,000, which should be equally divided, and that the said Charles B. Miller at his decease had in his hands the sum of $16,000.61 which was due and owing to him; that no settlement had yet been made; and therefore praying for an account. To this bill the defendant demurred, filing inter alia the following grounds of demurrer: (1) The defendant is- but a trustee, and has no interest in the corpus of the estate; (3) as surviving partner of the alleged copartnership of C. B. & G. A. Miller, it is the plaintiff’s duty to convert the copartnership assets into money, to pay all the debts of the copartnership, to account to the representatives of the estate of the deceased partner, and to show that he is a creditor partner of said firm, before any procedure calling on the testator’s estate to make answer to his alleged claim; (4) the said bill does not allege or show that the assets of said copartnership will not pay the debts thereof, and also what may be due, if anything, to the plaintiff. At the hearing, the president judge, Ludlow, said: “The bill does not show that an account of the partnership business has been stated by the plaintiff. It is his duty, as surviving partner, to settle the business and to account to the estate of his deceased partner. If it is found that there is a balance due to himself, the Orphans’ Court has jurisdiction to allow his claim out of the estate of the decedent.” The court was of opinion that the bill was fatally defective, and the demurrer was sustained, and the bill dismissed, without prejudice.

The surviving partner, as he alleges, thereupon settled up the outstanding accounts, and prepared a statement of the affairs of the firm, which exhibited an indebtedness to him of $16,000.61 by the estate of Charles B. Miller, deceased. This claim he presented to the executrix of the estate of Charles B. Miller, deceased, who refused to pay the same. He then, on the eighth of January, 1886, filed in the Common Pleas No. 1 of Philadelphia a second bill for an account, to which the defendant again demurred, and as cause for demurrer assigned the want of jurisdiction in the Common Pleas to give the relief prayed for. On the 19th of June, 1886, the court, being of opinion that the jurisdiction was exclusively in the Orphans’ Court, sustained the demurrer and dismissed the bill, with costs.

The executrix of Charles B. Miller, deceased, having filed her account on the twenty-eighth of December, 1885, George A. Miller accordingly went into the Orphans’ Court, when it was called for audit, and presented his claim for $16,000.61, alleged to be due him as surviving partner, on bis own statement of the partnership accounts. The Orphans’ Court in like manner declined jurisdiction, for the reason that the claim involved the settlement of a partnership account, and that ordinarily the authority of the Orphans’ Court did not extend to the settlement of accounts between partners. Pending the proceedings in the Orphans’ Court, George A. Miller died. The decree of the Orphans’ Court, having been brought into this court upon an appeal, was affirmed: Miller’s Est., 136 Pa. 349. Our Brother Mitchell, delivering the opinion of the court, said: “ Has the Orphans’ Court jurisdiction of such an issue? To state the question, thus clear of irrelevant matters, seems to answer it in the negative. It is not claimed that an account was stated by the assumed partners in the lifetime of both, and a balance found due to the appellant, upon which he would have standing as a creditor to maintain assumpsit, or to come in as a claimant upon the fund. His standing as a creditor at all, in which character alone can he make his claim, depends on the establishment of the disputed facts of the existence of a partnership, and the balance due him as a creditor partner upon the .account. These facts the Orphans’ Court has no jurisdiction to determine, nor would it have any means of enforcing payment by appellant, should the account when stated show a balance against him. Such issues belong to the Common Pleas, either in an action of account, or in the more convenient form of a bill in equity, where the chancellor has control over both parties, to enforce performance whichever way the result may turn out.” Wiley’s App., 84 Pa. 270, and Ainey’s App., 11 W. N. 568 (2 Penny. 192), were cited in support of this doctrine.

Pending an appeal from the Orphans’ Court, the appellant in this case filed the bill now under consideration, to which the appellee pleaded res judicata, setting up the dismissal of the bill in the Common Pleas No. 1 as a bar to the present bill. To this the appellant replied that the bill filed in Common Pleas No. 1 was dismissed solely for want of jurisdiction in the said court, and not upon the merits. As the cause is here for argument upon the bill, answer, and replication, the facts set forth in the replication must be assumed; and that the fact thus assumed is true, appears from the action of the court upon the motion to amend: Weigley v. Coffman, 23 W. N. 27.

The final decree of a court of chancery, dismissing a bill upon its merits without a stipulation against prejudice, is of course, conclusive between the same parties, upon the same matter coming in question in another court: Kelsey v. Murphy, 26 Pa. 78; Westcott v. Edmunds, 68 Pa. 84; Daniell’s Ch. Pr. 659, 994, note, and cases cited. Every court has the power, in the first instance, to determine its own jurisdiction; the first point decided by a court in any case, although it may not be in terms, is that of jurisdiction; and it has that power, although its decision and the law may be that it really has no such jurisdiction: King v. Poole, 36 Barb. 242; 12 Am. & Eng. Enc. Law, 307, and cases cited.

Judgment upon a point, not touching the merits of the principal matter in dispute, will, in respect of that point, ordinarily raise an estoppel. “ The parties and their privies will be precluded from asserting the contrary of the fact found in such judgment. Thus, dismissal of a suit for want of jurisdiction will estop the plaintiff from alleging, after the expiration of the statute of limitations, that he had begun suit (no other one having been undertaken) within the proper time; and, indeed, it appears to be true, as a general proposition, that where a party succeeded in defeating an action by his pleading, by motion, or the like, he cannot defeat a second action, by taking a position inconsistent with that taken in the first: ” Bigelow on Estop., 53. At the hearing of the bill in Common Pleas No. 1, the appellee demurred, assigning want of jurisdiction in the court. She now contends, and seeks to dismiss the plaintiff’s bill, upon the plea of res judicata, upon the alleged ground that the court had jurisdiction. This is an inconsistency which cannot be allowed. It is a matter of no consequence in this case that the Court of Common Pleas No. 1 in fact had jurisdiction; that court decided otherwise, and refused to exercise its jurisdiction. It is true that an appeal might have been taken, but none was taken, and the decision against the jurisdiction in consequence became the law in that particular case; but, as the decision was not upon the merits, and did not determine the plaintiff’s title to relief under the bill, it was not, according to all the cases, a bar in another suit.

The determination of the question of jurisdiction is but preliminary to the consideration of the case on its merits. A decree, to be conclusive in other cases between the same parties, must have been on the merits of the case : Freeman on Judgm., 3d ed., §§ 260-266. The judgment must be upon the merits ; if the real merits of the action are not decided in the prior judgment, it is no bar: Herman on Estop., 278, and cases there cited. “ It is only where the point in issue has been determined that a judgment is a bar. If the suit is discontinued, or the plaintiff becomes nonsuit, or for any other cause there has been no judgment of the court upon the matter in issue, the proceedings are not conclusive. So, also, in order to constitute the former judgment a complete bar, it must appear to have been a decision upon the merits, and this will be sufficient though the declaration were essentially defective, so that it would have been adjudged bad on demurrer. But, if the trial went off on a technical defect, or because the debt was not yet due, or because the court had not jurisdiction, or because of temporary disability of the plaintiff to sue, or the like, the judgment will be no bar to future action: ” Greenl. Ev., §§ 529, 530. “ If the decision was rendered upon a mere motion or a summary application, or if the cause was dismissed upon some preliminary ground, as upon a plea in abatement, e. g., because the wrong forum or mode of suit had been resorted to, for want of jurisdiction, defect in the pleadings, misjoinder, nonjoinder, non-appearance of the plaintiff, or the like, the parties are at liberty to raise the main issue again in any other form they choose: ” Bigelow on Estop., 52. An order of dismissal is a bar only when the court has determined that the plaintiff has no title to the relief sought by his bill: Story’s Ec[. Pl., § 793. “The doctrine of res judicata,” said Mr. Justice Foster, in Foster v. Busteed, 100 Mass. 409, “ is plain and intelligible, and amounts simply to this: That a cause of action once finally determined without appeal between' the parties, on the merits, by any competent tribunal, cannot afterwards be litigated by new proceedings, either before the same or any other tribunal. But no such effect is attributable to a decree dismissing a bill for want of jurisdiction, failure of prosecution, want of parties, or any other cause not involving the essential merits of the controversy; and where in the answer various matters of defence are set forth, some of which only relate to the maintenance of the suit and others to the merits, and there is a general decree of bill dismissed, from which it does not appear what was the prevailing ground of defence, it is impossible to hold that the decree operates to preclude future proceedings.” In Walden v. Bodley, 14 Pet. 156, it was held that a decree dismissing a bill in chancery generally, may be set up in bar of a second bill; but where the bill has been dismissed on the ground that the court had no jurisdiction, which shows that the merits were not heard, the dismissal is not a bar to a second bill. To the same effect, also, is Hughes v. United States, 4 Wall. 232. From the authorities cited and the reasons assigned therein, it is plain that, when a bill is dismissed upon the ground of want of jurisdiction, the dismissal cannot be said to be upon the merits; for, whether the action of the court be right or wrong, the complainant’s title to the relief sought is not thereby determined.

The decree of the Common Pleas is reversed, at the costs of the appellees, and the record is remitted for further proceedings.