Columbia National Bank v. Dunn , 207 Pa. 548 ( 1904 )

Opinion by

Mr. Justice Brown,

By a bill filed by the appellee on the equity side of the same court in which this suit was brought against him he asked for a decree that his indorsements on the notes be declared null and void; that the bank, the present appellant, be perpetually enjoined from taking any legal steps to collect from him the amounts due on the notes, and that it be decreed to cancel and strike off his indorsements thereon. In his bill he set up as reasons why he should be relieved from liability for his indorsements identically the same facts that now appear in his affidavit of defense. The bill was dismissed after a full hearing, the conclusion of the referee, affirmed by the court, having been that his indorsements were binding upon him and that the bank had a right to compel him to pay “ without restriction or delay.” Upon appeal to us, we held, in affirming the decree below, 204 Pa. 53 : “We accordingly conclude that the plaintiff by reason of his acts of affirmance of the contracts, his waiver of protest, the indorsement of renewal notes, the giving of the mortgage upon his own property and that of his wife, and securing an extension of time of some two years, had lost his right to rescind his contract of indorsement, and*is taken to have affirmed the same with full knowledge of all the facts upon which he now relies, and, therefore, the said contracts of indorsement and the mortgages given by him and his wife are binding upon him.” From this it is plain that the defense now set up is res adjudicata and can no longer avail the defendant. The material matters in the bill are the material matters in this issue, and by the decree against him in the equity suit the appellee is concluded. Out of innumerable authorities supporting this, reference is made to the following : Kelsey v. Murphy, 26 Pa. 78; Williams v. Row, 62 Pa. 118 ; Westcott v. Edmunds, 68 Pa. 34; Weigley v. Coffman, 144 Pa. 489; Larkins v. Lindsay, 205 Pa. 534.

But the question now before us is simply whether the court below properly withheld judgment against the defendant when asked to enter it for want of a sufficient affidavit of defense. Though it does appear in plaintiff’s statement that the final decree of the common pleas had been made in the equity suit, no reference is made to the appeal from that decree to this court. The affidavit of defense, however, does aver that such appeal was pending and undisposed of. The decree of the common pleas was not, therefore, at the time the affidavit of defense was filed res adjudicata, and, in determining later on whether judgment should be entered for want of a sufficient affidavit of defense, the court could consider nothing except what appeared from the plaintiff’s statement and the defendant’s affidavit of defense. Though the final disposition of the equity suit may have been brought to the attention of the court below, as it has been brought to ours, all that could be learned from the record in this case was that it was still pending. Judgment for the plaintiff for that reason was properly withheld, and we now affirm the order of the court below discharging the rule to show cause.