Appeal of Dick , 1884 Pa. LEXIS 236 ( 1884 )

Mr. Justice Trunkey

delivered the opinion of the court,

Section thirty-nine of the Act of June 13, 1840, P. L., 671, extends the equity jurisdiction of the Supreme Court and of the Court of Common Pleas within the county of Philadelphia, to all cases arising in said county, over which courts of chancery entertain jurisdiction on the ground of fraud, accident, mistake or account. And the jurisdiction is given “whether such fraud, accident, mistake, or account be actual or constructive: ” Act of April 16,1845, Sec. 3, P. L., 542. By the Act of February 14, 1857, “The Courts of Common Pleas of the several counties of this Commonwealth, in addition to the powers and jurisdictions heretofore possessed and exercised, shall have the same chancery powers and jurisdictions which are now by law vested in the Court of Common Pleas or District Court of the city and county of Philadelphia.”

The Act of October 13, 1840, Sec. 19, P. L. 1841, 7, vests' in the Supreme Court, the District Courts and the Courts of Common Pleas, within this Commonwealth, the powers and jurisdiction of Courts of Chancery in. settling partnership accounts and such other accounts and claims as b}r the common law and usages of this Commonwealth have been settled by action of account render; and the plaintiff may commence the' action either by bill in chancery or at common law, but-no-bill shall be entertained unless the counsel filing the same shall certify his opinion that tile case is of .such nature that no adequate remedy can be obtained at law, or that the rem-. edy at law will be attended with great additional trouble, in-¡ convenience or delaju

There is no apparent intendment that the later of these statutes should repeal the earlier. The Act of June 13,1840, was local when the Act of October 13, 1840, was enacted. The latter applied to particular accounts, and had no relation to others. Its scope was limited to cases suable in account-render, but did not give equity jurisdiction in every case-where that action would lie. Before the court can rightfully entertain the bill, the counsel shall file the prescribed certifi-cate, but that certificate is not conclusive of his client’s right to avoid a suit at law by proceeding in equity. Should the court be of opinion that the ease is one wherein an adequate remedy can he obtained at law, or that such remedy would not he attended with great additional trouble or delay, the bill would be dismissed notwithstanding the certificate. The court shall not proceed without the certificate being filed ; when filed with the hill the case shall be disposed of upon like principles as other proceedings in equity, and if it appear that there is nothing requiring the peculiar aid of equity, the bill will be dismissed. The Act of 1857, which gives all the Courts of Common Pleas jurisdiction of eases over which Courts of Chancery entertain jurisdiction on the grounds of fraud, accident, mistake or account, though broad enough to include all eases of account, may well be understood as relating to accounts not within the General Act of 3840. It only applies to tiio Courts of Common Pleas, and it could hardly have been the legislative intent to give these courts a larger jurisdiction than was then vested in the Supreme Court by the prior statute. Nor is there such inconsistency or repugnancy as implies a repeal. Both are affirmative statutes; one gives equity jurisdiction of certain accounts, upon conditions, to the Supreme Court, the District Courts and the Courts of Common Pleas, and the other gives jurisdiction to the Common Pleas of several classes of cases, including accounts, and the accounts are such as could not be settled in an action of account render.

The appellants contend that the chief purpose of their bill was to obtain an injunction restx-aining the appellees from manufacturing and selling goods in violation of their agreement. But they have not shown in this court ground for an injunction, and no error appears as respects that point. The mere fact that they prayed injunction does not warrant a decree for account. And if they were entitled to an injunction as claimed, it does not follow that the bill would be retained for other purposes.

They also urge that the bill is for discovery, and that the court, having legitimately assumed jurisdiction for the purposes of discovery, will retain the bill for account. If it was their object to make the defendants disclose in their answer matters essential to the plaintiff’s case, it is dimly expressed. There is no prayer for discovery, and none is made in the answer. If no discovery is asked or required by the frame of the bill, the jurisdiction will not be maintainable. The general rule is that where a court of equity has jurisdiction for discovery, and the discovery is effectual, the court may proceed to grant full relief. But it would be no ground for jurisdiction if the discovery failed: Story Eq. Jur.,' §§ 455, 456, 458. The second and third prayers of the bill relate entirely to appointment of a Master and proceedings before him, and there has not only been no discovery, but none has been required.

The learned Judge of the Common Pleas rightly ruled that the bill set out a case suable in account render, and therefore within the general statute of 1840, Before the bill was dismissed the appellants’ counsel asked leave to amend by filing the certificate, which was denied, and the bill dismissed for the sole reason that the certificate had not been filed, as required by the statute. The motion to amend did not relate to the pleadings or any matter of evidence, but only to the filing of a certificate by counsel. That the court had power to permit the amendment and direct the filing to be as of date of filing the bill, we think is clear. It was so ruled by an able judge in Thomas v. Hall, 2 Pear., 64. The Act of 1864, P. L., 775, authorizes the courts to permit, at their discretion, when in their opinion the same will affect the merits and expedite justice, amendments to the pleadings or other matters in the same manner as now obtains in common law cases and practice. If it be true that the proposed amendment did not affect the merits of the questions in controversy, yet its denial terminated the-proceeding to the delay and costs of the plaintiffs without just advantage to the defendants. Their tardiness in bringing the omission to the notice of the court should be treated as acquiescence by them in the plaintiffs’ default. The discretion vested in the courts to permit amendments is to speed the cause to determination on its merits, and should be liberally exercised where the amendment will do no injustice to the opposite party. The defendants claim that the decision of the court below on a question of amendment is final. We are of opinion that it is the intendment of the statute to secure to parties the same right to make amendments in equity proceedings as in actions at law. In either, generally, the amendment must be made with leave and under the control of the court. It is settled that the decision of a law court upon most questions of amendment is subject to review. The ruling of a court of equity upon a motion to amend will not be reversed save for plain and hurtful error.

This bill was actually entertained two years and three months before it was set aside. On April 12, 1881, a preliminary injunction was decreed and bond approved. Three days thereafter a rule to show cause was granted why the injunction should not he dissolved; in due course that came up for argument, and the injunction was continued. The defendants filed their answer on July 6, 1881, and it contains no suggestion that the case presented in the bill does not require the peculiar aid of a court of equity for adequate remedy; nor did the defendants in any way inform the court that the requisite certificate was not filed till August, 1882. The cause was referred to a Master in March, 1882. Though the naked facts show serious default in the plaintiffs’ counsel, the court entertained the bill without scrutiny and acted thereon, as did all parties, as if no requisite had been omitted. There is no pretence that the omission was by design. A plainer case for amendment is not likely to arise in practice, nor one where denial would likely cause greater injury to one party and less to the other.

Decree reversed and bill reinstated. The plaintiffs’ counsel have leave to file the certificate nuno pro tune. Costs of appeal to be paid by the appellees.