Estate of Jacob S. Buch, dec'd (No. 2). The first, third, fourth and seventh exceptions are sustained. The fifth and sixth exceptions are dismissed. The trustees are ordered to invest the trust fund as the law provides. The debit side of the income account is increased by $70.00, making the total $420.00. The credit side is increased by $3.50, which is allowed as additional "commissions". Instead of a deficit of $28.02, as appears by the income account, it is found that there is a balance amounting to $38.48. As to John Buch, the account is confirmed as reformed. C. P. AND Q. S. OPINIONS. Saturday, June 25, 1921. By JUDGE LANDIS: E. C. Frey v. M. R. Hoffman. Rule for judgment for want of a sufficient affidavit of defense. William Smith v. Harry V. Pearce. Judgment entered in favor of the defendant on a question of law. Edward Hallman v. P. R. Sterner. Question of law overruled and defendant is ordered to file a supplemental affidavit of defense. Celin H. Hilton v. Theodore Sharpless. Rule to set aside counterclaims and set-offs discharged. Henry S. Snavely v. Paul L. Leaman. Rule for a new trial discharged. Jacob Pontz v. Fred Douglas Crawford, with notice to the Conestoga Motor Truck Co. Exceptions to Auditor's report. Exceptions. overruled and Auditor's report confirmed. Jacob H. Ziegler v. Abraham L. Hoffman. Exceptions to findings of fact, conclusions of law and decree. Exceptions dismissed and decree confirmed. F. W. Ployd, receiver of the Conestoga Motor Truck Co. v. The First National Sales Corporation. In re Audit of first and final account of Owen P. Bricker, receiver. Distribution in balance in hands of receiver. Amos S. High v. Christian B. Nolt. Final hearing. Bill dismissed at plaintiff's costs. In re Upper Leacock School District. Petition for leave to withdraw proceedings. Leave granted, upon payment by the School District of $250 damages and $50 counsel fee. Commonwealth v. John Wonder. Petition for reduction of order. Order reduced to three dollars per week. Harold G. Ripple, Attorney for Lena Miedl, v. Theodore Wolf. Rule to show cause why judgment should not be opened and defendant let into a defense. Rule made absolute. Otto Miedl, to the use of H. Edgar Sherts, v. Theodore Wolf and Josef Gerhart. Rule to show cause why judgment should not be opened. Rule continued, pending the final disposition of the case of Harold G. Ripple, attorney for Lena Miedl, v. Theodore Wolf. C. P. and Q. S. Opinions. Saturday, July 2, 1921. By JUDGE HASSLER: E. D. Russell v. George W. Kinzer. Bill in Equity. Answer and testimony. Findings of fact and conclusions of law in favor of defendant. Harvey D. Abel v. John B. Payne, Federal Agent for the Director General of Railroads. Rule for a new trial. Rule for judgment for defendant. Both rules discharged. Hilda Minick v. John D. Denny. Affidavit of defense raising a question of law. Plaintiff directed to amend her statement. Mary A. Worrell v. Frank Worrell. Rule for new trial. Rule for judgment for defendant. Both rules discharged. Dominick Steffero v. Newton E. Martin. Rule to strike off judgment of non-suit discharged. Michael J. Phelan and Elizabeth Phelan v. Armstrong Cork Company. Rule to strike off judgment of non-suit discharged. R. Reinfried v. Frank Heiss. Rule for judgment for defendant discharged. Reuben Benedict v. Township of Fulton, Cyrus Eckman et al., Supervisors. Rule for a new trial. Rule for judgment for defendant. Both rules discharged. J. W. Fehl v. Louis Pfaeffle. Rule for a new trial made absolute. Atlantic Motor Truck Company v. Charles Kachel. Rule for judgment for plaintiff discharged. Josephine Meckley v. Ralph Meckley, Emma Meckley and H. J. Gish. Bill in Equity. Findings of fact and conclusions of law in favor of defendants. Doll Clark v. Martin Reardon. Appeal from taxation of costs dismissed. John Barton Payne, Federal Agent for Director General of Railroads, v. A. Rubin & Co. Rule for judgment for want of a sufficient affidavit of defense discharged. L. D. Jurst, Philadelphia, Pa., v. W. S. Hastings, Sr., Ida E. Hastings, Drumore. Rule to set aside or open judgment as to Ida E. Hastings made absolute. William W. Fetter, Executor of John H. Brendle, deceased, v. Hiram K. Brendle, Frank Brendle. Bill in Equity. Findings of fact and conclusions of law in favor of defendants. John B. Brown v. Elizabeth A. Brown. Rule to vacate and set aside decree of divorce discharged. The City of Lancaster v. American Bonding Co., of Baltimore. Affidavit of defense raising questions of law overruled and defendant ordered to file an affidavit of defense. Commonwealth of Pennsylvania v. Mortimer J. Hayes. Desertion. Rule to modify order of court made absolute. Order reduced to $3 per week. In re Road in East Donegal Township. viewers dismissed. Exceptions to report of Court of Common Pleas of Lancaster County-In Equity John W. Eshleman v. Grey Iron Casting Co., G. Ellsworth Higgins, W. A. Coventry and I. R. Stewart (No. 1). Equity-Specific performance-Stock in corporation-Personalty-Actions in rem-Extra-territorial service-Act of April 6, 1859. A principal defendant, within the meaning of the Act of April 6, 1859, P. L. 387, authorizing extra-territorial service in a suit in equity where process has been served on a principal defendant, is one who has such interest in the controversy that his presence is requisite to its adjudication. Where an action for specific performance is brought against three defendants jointly, two of whom are non-residents, to compel them to perform an alleged agreement to sell certain shares of stock to the plaintiff, the local defendant is a principal defendant. The interest of a stockholder in the stock of a corporation is personal and follows him in and is controlled by the law of his domicil. An action to reach property real or personal of the defendant is not in personam but is quasi in rem. Bill in equity. No. 6, page 382. Motion to vacate order of service. Equity Docket John A. Coyle, for motion. F. Lyman Windolph, contra. March 5, 1921. Opinion by HASSLER, J. In his bill the plaintiff seeks a decree of specific performance to compel W. A. Coventry, G. Ellsworth Higgins and I. R. Stewart to perform their part of an oral or verbal contract alleged to have been made by them with the plaintiff on June 26, 1914, wherein they agreed to sell, and he agreed to buy, sixty-two and a half shares of the capital stock of the Grey Iron Casting Company, the principal office of which is in this county, at one hundred dollars a share. The said W. A. Coventry, G. Ellsworth Higgins and I. R. Stewart, at the time the contract was made, were the owners of all the capital stock of said company, which consisted of two hundred and fifty shares. W. A. Coventry, one of the defendants, is a resident of this County. The process issued in this case was personally served upon him. On August 21, 1920, upon application of the plaintiff, this Court ordered extra-territorial service upon said Higgins and Stewart, under the provisions of the Act of April 6, 1859, P. L. 387. This order we are now asked to vacate and set aside. The Act of April 6, 1859, P. L. 387, under which this order was made, is as follows: "It shall be lawful for any court of this Commonwealth having equity jurisdiction, upon special motion of the plaintiff or plaintiffs, in any suit in equity which has been or shall be instituted therein, concerning goods, chattels, lands, tenements, or hereditaments, or for the perpetuating of testimony concerning any lands, tenements, and so forth, situate or being within the jurisdiction of such court, or concerning any charge, lien, judgment, mortgage, or encumbrance VOL. XXXVII, No. 90 John W. Eshleman v. Grey Iron Casting Co., G. Ellsworth Higgins, thereon, or where the courts have acquired jurisdiction of the subject matter in controversy, by the service of its process on one or more of the principal defendants, to order and direct that any subpœna, subpœnas, or other process to be had in such suit, be served upon any defendant or defendants therein, then residing or being out of the jurisdiction of such court, wherever he, she or they may reside or be found; and upon affidavit of such service had, to proceed as fully and effectually as if the same had been made within the jurisdiction of such court." It is contended in support of this rule, first, that the subject matter of this suit is not within the jurisdiction of this court, and second, that W. A. Coventry is not such principal defendant as is contemplated in the Act, so that service of the process upon him did not justify our order for extra-territorial service upon the two non-resident defendants. In Coleman's Appeal, 75 Pa. 441, it is staetd, though it is not a question decided, that the stock in a corporation whose principal office is within the jurisdiction of the court is also within that jurisdiction. It has, however, expressly been decided, in McKeen v. the County of Northampton, 49 Pa. 519, that the interest which a stockholder has in the stock of a corporation is personal, and follows him in and is controlled by the law of his domicil. This has also been decided in Whitesell v. Northampton, 49 Pa. 526; Finney's Appeal, 59 Pa. 398; and German Association v. Sendmeyer, 50 Pa. 67. It may be conceded that the stock owned by Higgins and Stewart in the Grey Iron Casting Company is with them in the City of New York, and is not within the jurisdiction of this Court. The Act, however, authorizes extra-territorial service upon non-residents when a principal defendant is within the jurisdiction of the court and is served with process. That according to the terms of the Act brings the subject matter within the jurisdiction of the court. In Eby's Appeal, 70 Pa. 311, it is decided that where a principal defendant is within the jurisdiction of the court and has been served with process, the subject matter is brought within the court's jurisdiction, and extra-territorial service may be had under the act on nonresident defendants. Is W. A. Coventry a principal defendant in this case. In deciding this question in Bird v. Sleppy, 265 Pa. 295, Justice Kephart, on page 298, says: "A principal defendant is one who has an interest in the controversy presented by the bill, and whose presence is requisite to the complete or partial adjudication of the controversy. In deciding who ought to be parties, it is necessary to distinguish between active and passive parties; between those who are so necessarily involved in the subject in controversy and the relief sought for, that no decree can be made without their being before the court; and such as are formal or so far passive, that complete relief can be afforded to those who seek it, without affecting the rights of those who are omitted but if a decree can be made without affecting the rights of a person not made a party, or without his having anything to perform necessary to the perfection of the decree, reason as well as adjudged John W. Eshleman v. Grey Iron Casting Co., G. Ellsworth Higgins, cases will warrant the court in proceeding without him, if he be not amenable to the process of the court or no beneficial purpose is to be effected by making him a party': Coleman's App., 75 Pa. 441, 459. The test, under the act, for the service of a writ outside the jurisdiction of the Court is . . . what is the relief sought, and does the relief prayed for necessarily involve rights of the person charged as being the principal defendant, so that his presence is necessary to the validity of the decree?" In Smith v. Carter, 219 Pa. 315, a bill was filed for an accounting against three defendants, two of whom were non-residents. It was alleged in it that the plaintiffs were unable to ascertain, and could not tell, which of the defendants, or how many of them, had moneys coming to the plaintiffs out of a lease of certain coal lands, located within the jurisdiction of the court. The transaction between all the defendants in the matter was so complicated that it was necessary to bring them all before the court in order to enforce the rights of the plaintiff. This, it was held, made the defendant, who resided in the county, and who was served with process, a principal defendant and conferred jurisdiction on the court to order extra-territorial service on the other two non-resident defendants under the Act of 1859. The plaintiff alleges in the bill filed in this case that W. A. Coventry jointly with the other two defendants made a contract with him to sell the stock in question to him. W. A. Coventry had an interest in the controversy presented by the bill. He was an active and not a passive party to the transaction. Complete relief could not be afforded the plaintiff without affecting his rights, and it was necessary, therefore, to have him in Court in order to enforce the rights of the plaintiff. He was, therefore, a principal defendant, and service upon him justified our order of extra-territorial service upon the two non-resident defendants under the Act of 1859. Service upon him brought the subject matter of the controversy within the jurisdiction of this Court. The cases cited by counsel for the defendant to the effect that the Act of 1859 does not apply to actions in personam has no application here, as this is not such an action, but an action in rem, or quasi in rem. In 16 Corpus Juris, Section 171, it is said that "Actions or proceedings in personam are such as are directed against a person, and seek the recovery of a personal judgment, while actions or proceedings in rem are directed against a thing or property. It is to establish a status or condition thereof and procure a judgment . . . while properly speaking actions or proceedings in rem are against the thing itself. . . . The term has in a larger or broader sense been applied to certain actions and proceedings between parties where the object is to reach and dispose of property (real or personal) owned by them, or in which they have an interest, but as they are not strictly in rem, they have been termed quasi in rem, or in the nature of actions or proceedings in rem." We are satisfied that the order of extra-territorial service upon G. Ellsworth Higgins and I. R. Stewart, the two non-resident defendants, was properly made under the Act of 1859, and we therefore discharge the rule to show cause why it should not be vacated and set aside. |