Pittsburg & Connellsville Railroad v. Mt. Pleasant & Broad Ford Railroad , 1875 Pa. LEXIS 14 ( 1875 )

Mr. Justice Sharswood

delivered the opinion of the court, January 4th 1875.

There are several questions raised by the assignments of error upon this record, which we deem it unnecessary to discuss, as we are of opinion that there was substantial error in the judgment entered in the court below on the pleas in abatement.

That the judgment was technically wrong there can be no doubt. There was no issue, either of law or fact, upon either of the pleas. A motion was made to strike them off. Such a course is proper when the plea is irregular — not filed in time — not verified by affidavit; or when the pleas are double, leave of court never being granted, under the Statute of Anne, to file more than one dilatory plea, or when it is filed after a plea in bar: Stephens on Plead. 276. Had the motion been granted, and the plea stricken off, it might have been all right on some of these grounds. But this course cannot be resorted to when the objection to the plea is its insufficiency: Ralph v. Brown, 3 W. & S. 395. The plaintiffs ought to have replied nul tiel record, or have demurred; and then, if the record when produced did not support the plea, or if it was insufficient, admitting its truth, the judgment of the court would properly have been for the plaintiffs quod respondeat ouster.

It is evident, however, that the court proceeded as if there had been a demurrer; the objection below, as well as in this 'court, having been exclusively to the sufficiency of the pleas. The two pleas were really only one. What is set up separately in the second plea, the cross-hill of the plaintiffs in the equity proceeding, was really only a branch or part of the original cause instituted by the defendants. It' was all one and the same- proceeding: Brightly’s Equity, s. 5, 71; Story’s Equity Pleading 5, 899.

Let us consider, then, the objection made below and in this court to the pleas. It is that the Supreme Court has no original jurisdiction to try and determine the issues in this action upon a bill in equity or upon a cross-bill. It is to be observed in passing, that the plaintiffs below, the defendants in the equity proceeding, did not demur for want of jurisdiction, but made answer, and filed their cross-bill, to which the defendants answered, issue was joined, and the case went to a master to take the testimony and report the same. It may be doubted whether it is competent for the defendants filing the cross-bill to question the jurisdiction of the court to grant the relief for which they have themselves prayed. But, without relying upon this, it is to be remarked that substantially the bill of the Pittsburg and Connellsville Railroad Co. was to be relieved from an alleged forfeiture set up by the Mt. Pleasant and Broad Ford Railroad Co., upon the footing of which they had taken forcible possession of the road. It is true that one immediate .object of the bill was to obtain a preliminary injunction, to prevent this forcible possession, but the injunction so obtained was interlocutory only, which would stand until final decree, by which it would either be dissolved or made perpetual. It is true also that the plaintiffs in that bill denied that any forfeiture had occurred, or been legally declared, but still, as the pretence set up on the other side was to the contrary, nothing seems to be clearer than that the Supreme Court had jurisdiction in this case on general principles, without resorting to the Act of April 10th 1869 (Pamph. L. 25). To relieve against forfeiture is one of the oldest and best established functions of a court of equity: Story on Equity Jurisprudence 5, 1315. But, as it is earnestly contended now, that if the bill of the plaintiffs in the equity cause were dismissed, after final'hearing, that court would not, upon the cross-bill, proceed to enforce the forfeiture and put the lessor in possession, but leave him to his common-law remedy, does it follow that he is not bound to wait until the final decree is entered ? Is it possible that there must be such a conflict of jurisdiction as must result, if the determination of the court of equity shall finally be, that the lessees are entitled to be relieved from the alleged forfeiture and maintained in the peaceable possession ? After such a decree, shall a sheriff come with a habere facias possessionem and put them out ? Could not such a decree be pleaded or set up in bar of the common-law action ? If it could, surely the pendency of the proceeding may be pleaded in suspension or abatement. It is by no means clear that the decree awarding a preliminary injunction might not have been pleaded or set up in bar. Such an injunction has all the force of a final one temporarily, until it is either dissolved or made perpetual. It is to be enforced while it lasts by all the power of the court in an attachment for contempt. It is to be remembered that the question is not whether the forfeiture here set up is such an one as a court of equity would relieve against. The defendant in the equity case might have brought that question to a speedy determination by demurring to the bill, and if it had been in their favor, would have been free to proceed with their common-law remedy. The question is one of jurisdiction in the court of equity, and if that jurisdiction existed and had been invoked, it necessarily precluded the party during its pendency from instituting a proceeding in another form involving the same question. Judgment reversed.