Opinion
October 2, 1934.
November 22, 1934.
Interpleader proceeding — Narr — Plea — Failure to file plea — Summary judgment — Rule to strike off — Discretion of court — Abuse.
A court does not abuse its discretion in discharging rules to strike off and to open a judgment entered in favor of a plaintiff in an interpleader proceeding for failure of the defendant to enter a plea, where the petitioner fails to offer any explanation for her failure to file the plea. The mere allegation that counsel for the defendant was ill and unable to attend to the matter is not sufficient reason to strike off the judgment where the nature and duration of the illness is not disclosed.
Although a court may not summarily dismiss a rule for interpleader and render judgment in favor of one of the claimants, it may, after making absolute the rule, enter a judgment for the plaintiff for failure of the defendant to enter a plea after the plaintiff has filed a narr.
Appeal No. 154, October T., 1934, by defendant from order of C.P. No. 1, Philadelphia County, December T., 1931, No. 7230, in the case of Mary Herbst, Administratrix, C.T.A. v. Lillian M. Derrick.
Before TREXLER, P.J., KELLER, CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. Affirmed.
Rules to open and to strike off a judgment. Before PARRY, J.
The facts are stated in the following opinion of PARRY, J.
Rules to open and to strike off judgment. Rule to pay money back into court.
Mary Herbst is the administratrix C.T.A. of the estate of William T. Herbst, deceased, whose life was insured under a policy issued by the Prudential Life Insurance Company of America. She brought suit against the insurance company claiming the proceeds of the policy to be payable to the estate of the decedent. Lillian M. Derrick likewise brought suit against the insurance company, claiming to be the beneficiary named in the policy at the time of William Herbst's death.
The insurance company paid the amount admitted to be due into court and petitioned that the two claimants be ordered to interplead as provided in the Act of March 11, 1836, P.L. 76, Sections 4 and 5. The court ordered a feigned issue to be framed with Mary Herbst as plaintiff and Lillian Derrick as defendant; the plaintiff to file her narr within thirty days, the defendant to file a plea within thirty days from notice of filing of the narr; and issue to be joined by replication.
The narr was filed and served on Harry Felix, Esq., attorney of record for Lillian Derrick, on September 25, 1933. As no plea was filed the plaintiff petitioned for a rule, returnable December 18, 1933, for judgment against Lillian Derrick and on December 13 filed an affidavit that a copy of the rule had been served on Mr. Felix on December 12. No one appeared to answer the rule and the court made it absolute and decreed payment of the money previously paid into court to Mary Herbst administratrix C.T.A. On December 22, 1933, Mr. Felix ruled Mary Herbst to show cause why the judgment should not be stricken off; why it should not be opened to permit Lillian Derrick to present her side of the case and why she should not pay back into court the money collected on the judgment.
In support of the rules to open or to strike off judgment and to pay back the money, it is said that at some time prior to the date fixed for argument on the rule for judgment Mr. Felix was ill and unable to attend to the matter. The nature and duration of this illness has not been disclosed but unless it lasted for three months and had the effect of incapacitating his partner and other assistants it would seem to afford no excuse for so long a delay. On the Friday before the Monday to which the rule for judgment was returnable Mr. Felix's stenographer is said to have telephoned to the office of Mr. Lapensohn, attorney for Mary Herbst and asked a girl who answered to tell Mr. Lapensohn that Mr. Felix would be in Room 653 City Hall on Monday and would like the case continued. The petition then alleges generally that Lillian Derrick has a complete defense to the claim of Mary Herbst.
No depositions have been filed in support of these rules; no agreement to continue is pretended; no explanation is offered of the failure to file a plea. The reasons alleged merely go to explain why counsel did not appear at the argument on the rule for judgment. We have nothing before us upon which to base an order making these rules absolute. A verbal message said to have been telephoned from one stenographer to another, which never reached the attorney for whom it was intended, affords no ground for the opening of a judgment.
It is further urged that in interpleader proceedings the court has no jurisdiction to enter judgment on the pleadings without a jury trial. The cases cited for this proposition do not appear to be in point. They hold that the court may not summarily dismiss a rule for interpleader and render judgment in favor of one of the claimants or it may not render judgment for want of a sufficient plea but must allow the case to proceed to trial. The situation in the case at bar is altogether different. The court has made absolute the rule for interpleader; one claimant has filed a narr but the other has filed no plea. To adopt the petitioner's theory would be to allow one claimant to hold up the proceedings indefinitely by the simple process of doing nothing. The plaintiff cannot proceed to trial because the case is not at issue. The contention is that she must wait indefinitely until the other party acts. We cannot think that the court is powerless to deal with such a situation and the petitioner's rules are accordingly discharged.
The court discharged the rules. Petitioner appealed. Error assigned, among others, was the order of the court.
P. Edward Barenkopf, and with him Harry Felix, for appellant.
Harry Lapensohn, for appellee.
Argued October 2, 1934.
The judgment of the lower court is affirmed on the opinion of Judge PARRY.