Kurtz v. Farrell , 44 Pa. Super. 355 ( 1910 )

Opinion by

Rice, P. J.,

The bill in equity in this case was filed to November Term, 1907, of the court of common pleas of Jefferson county. The docket entries in the case are not printed in the appellant’s paper-book, but it is stated in the opinion of the learned judge of that court, and is undisputed, that the bill was served on September 9, 1907. Nor is it alleged that the usual rule and notice to appear within fifteen days and to answer within thirty days were not served as prescribed by the equity rules. Equity rule 29 provides that in default of compliance with the rule to answer the plaintiff may, at his election, enter an order as of course in the cause that the bill be taken pro confesso. It further provides that in such case the cause shall proceed ex parte and the case may be placed on the next argument list and the matter of the bill may be decreed by the court, when there reached in its order, if the same can be done, without an answer, upon the allegations in the bill, which, without further proof, shall be taken as admitted. On May 17, 1909, the plaintiffs, instead of entering an order as of course taking the bill pro confesso, as ¡they had a right to do, moved the court for judgment pro confesso and at the same time to decree certain matters of the bill. Upon this motion the court made the following order: “Motion granted and judgment pro confesso directed to be entered sec. reg.” If there was irregularity in this mode of procedure it did no harm, for, as already suggested, the plaintiffs were entitled as of course to take the bill pro confesso for want of an answer. Nor did the appellant in its motion, from the refusal of which this appeal was taken, question the decree on the ground of defectiveness, or error of form or substance, or of irregularity of procedure. Its motion was to strike off the decree pro confesso and permit it to file its answer (which was presented with the motion) “setting up as it does a special defense not heretofore set up in any of the cases and which defense is particularly a special defense for the said defendant lodge.” Treating the motion strictly as a motion to set aside the decree pro confesso, we think there was no error in refusing it. Equity rule 30 provides, that when the bill is taken pro confesso and the court shall have proceeded to decree as provided in the preceding rule, such decree so rendered shall be deemed absolute, unless the court, or a law judge thereof, shall, within fourteen days after the service of notice of such decree on the defendant, set aside the same and give the defendant time for filing an answer, upon cause shown. It does not appear in the present case that notice of the decree was served on the defendant, although the learned judge says in his opinion that he believed the defendant’s counsel had notice of it at the time it was entered. Be that as it may, the defendant waived service of such notice by its motion, which was made on June 28, 1909, to set aside the decree. But in the absence of proof that notice of the decree was served on the defendant, the defendant’s motion could not be dismissed upon the ground that it was not made in time, under the equity rule, and we do not understand that this consideration entered at all into the judge’s ruling reffising the motion. It is to be observed, however, that while the courts exercise considerable liberality in the disposition of the motion to set aside a decree pro confesso, particularly where a meritorious defense is sought to be set up, yet the motion is not to be granted as matter of course, but only upon cause shown. Referring to the dates when the bill was filed and the decree was entered, it will be seen that the defendants were guilty of great laches. No explanation was made to the court for the delay, nor is any excuse therefor apparent in the nature of the case. The single "cause shown” in the motion was the fact that this appellant had a special defense which had not been set up in the other similar cases, growing out of the affairs of this building and loan association, that had been before the court. The learned judge took an extremely liberal view when he said that if he were satisfied that the defendant had a special defense that had a reasonable chance of prevailing he would be disposed to relieve the defendant from the consequences of its default, although of a rather aggravated character, if he could, find any legal or equitable excuse for doing so. But upon reconsideration of the question in this view he concluded that there was no such difference between this case and those that had been previously adjudicated as would justify him in taking off the default. Such differences as did appear were carefully considered and shown to be insufficient to defeat the right of the plaintiffs to have refunded any excess payments made to the defendant on its stock. The substantial questions raised by the answer proposed to be filed, as well as the question of jurisdiction raised on the argument of this appeal, were elaborately considered in Kurtz v. Bubeck, 39 Pa. Superior Ct. 370. For the reasons above suggested, taken in connection with those set forth more at length in the clear and satisfactory opinion of the learned judge below, in which we concur, we conclude that no error was committed in refusing to strike off the decree pro confesso.

The order refusing the motion to strike off the order or decree that the bill be taken pro confesso is affirmed at the costs of the appellant.