Black v. Bohlen , 175 Pa. 491 ( 1896 )

Opinion by

Mr. Justice Mitchell,

The proceedings in this case from the service of the bill down to the deeree appear to have been exceedingly irregular, but as the decree is not final the case would not be in position for appeal to this court were it not for the injunction against the plaintiff in the scire facias sur mortgage. It is true it is called merely an order to stay proceedings, but as the order was made in a separate suit and upon matters not appearing at all in the scire facias, it is in effect an injunction and can only be made operative as such.

It is unnecessary to discuss the objections to the proceedings, as the bill is radically defective in substance. It is a bill to take a suit pending upon a legal cause of action, out of the hands of a court of competent jurisdiction to decide it, and to transfer the appellants from their position as plaintiffs at law to one of respondents in equity. If a court of equity could do this under any circumstances there is nothing in the bill to justify it n the present case.

The only legitimate object of the bill is discovery in aid of a defense to the mortgage. The proper mode of seeking this relief is by a bill of discovery filed in the action of scire facias and ancillary to it. Even if .the present bill had been so filed it would have been fatally demurrable, first, because among other things it avers that the necessary evidence for the defense the orator desires to make is in the hands of Edgar N. Black,. Jr., for whose action these defendants are not responsible; and secondly, because the transactions on different mortgages, given at different times, by different mortgagors to different mortgagees, or to the same mortgagees in different rights, are lumped confusedly together in such manner as to indicate either an entire absence of any real knowledge of facts on which to base the claim set up, or an intention to befog the case for purposes of delay and annoyance.

Decree reversed with directions to dismiss the bill with costs.