76 A.2d 382
Supreme Court of Pennsylvania.October 9, 1950.
November 13, 1950.
Equity — Practice — Irregular practice by chancellor — Equity Rules 55 and 48 — Preliminary objections — When applicable.
1. It is an irregular practice for the chancellor to place an equity case on the argument list of the court en banc, even though the pleadings raise only questions of law; he should first pass upon the case before it is considered, on exceptions, by the court en banc. [543]
2. After a responsive answer has been filed to a bill in equity and the case is at issue, Equity Rules 55 and 48 relating to the filing of preliminary objections, have no application. [543]
Before DREW, C. J., STERN, STEARNE, JONES, LADNER and CHIDSEY, JJ.
Appeal, No. 161, March T., 1950, from decree of Court of Common Pleas of Allegheny County, Jan. T., 1950, No. 228, in case of H. A. Clarke v. F. W. Graham et al. Decree affirmed.
Bill in equity.
Plaintiff’s motion for judgment for want of a sufficient answer granted, and order entered granting injunctive relief, before PATTERSON, O’TOOLE and SOFFEL, JJ., opinion by SOFFEL, J. Defendants appealed.
Robbin B. Wolf, with him Louis Vaira, for appellants.
Mahlon E. Lewis, with him Clyde E. Donaldson and Loyal H. Gregg, for appellee.
Page 543
OPINION PER CURIAM, November 13, 1950:
This case was correctly determined in the opinion of Judge SOFFEL.
We do not regard this decree, however, as one of default — pro confesso. We note that a responsive answer was filed to the bill and issue joined. The case then appeared on the equity trial list. The chancellor perceiving that there were no questions of fact raised by the pleadings, but merely questions of law, placed the case on the argument list of the court in banc. This is an irregular practice. A chancellor should first pass upon the case before it is considered, on exceptions, by the court in banc. Curiously enough, before the case was argued before the court in banc, plaintiff and defendant, respectively, made motions under Equity Rules Nos. 55 and 48, raising preliminary objections to bill and answer. Obviously, after a case is at issue, such Equity Rules, relating to preliminary objections, have no application. Such errors in procedure, however, are harmless in this case and do not necessitate recommittal for the purpose of correction.
Decree affirmed. Costs to be paid as directed by the court below.