Opinion
Argued March 19, 1951
Decided May 21, 1951
Equity — Practice — Notice to defendants to plead — Preliminary objections — Appeal — Allowance of amendment.
Where plaintiff's bill in equity was dismissed on preliminary objections for not having endorsed on it a notice to defendants to file an answer, and plaintiff had neglected to ask the court below for leave to amend, it was Held that in the interest of justice plaintiff should be permitted to amend his complaint by filing a notice to plead thereon.
Before DREW, C. J., STERN, STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ.
Appeal, No. 85, March T., 1951, from order of Court of Common Pleas of Allegheny County, Oct. T., 1950, in Equity, No. 1296, in case of Victor M. Sprys v. Patrick F. Hackett, individually and as Trustee and Officer of Local No. 5, American Federation of Labor, etc. Order reversed.
Bill in equity.
Defendants' preliminary objections sustained and bill dismissed, before PATTERSON, O'TOOLE and NIXON, JJ., opinion by O'TOOLE, J. Plaintiff appealed.
Loyal H. Gregg, with him Mahlon E. Lewis, and Gwilym A. Price, Jr., for appellant.
Bernard Kaplan, for appellees.
Plaintiff filed a bill in equity to restrain alleged unlawful picketing by defendants who thereupon entered a general appearance. A hearing was had and a preliminary injunction issued.
One week later, on August 15, 1950, defendants filed a motion to dismiss the bill on the ground that the bill did not have endorsed thereon any notice to defendants to file an answer. This motion was denied.
On September 6, 1950, defendants filed preliminary objections to the bill on the ground that the bill failed to notify defendants to file an answer. The court below sustained the preliminary objections and dismissed the bill. This appeal followed.
Plaintiff neglected to ask the court below for leave to amend, which he should have done. He now asks leave to do so. The court below could have granted leave to amend without plaintiff's request. Defendants suffered no harm from the failure of plaintiff to notify them to plead.
In the interest of justice plaintiff should be permitted to amend his complaint by filing a notice to plead thereon.
Order reversed with directions to the court below to permit plaintiff to amend his complaint by filing a notice to plead thereon and with a procedendo. Costs to abide the event.