TRAPP ET AL. v. LAFFEY ET AL., 349 Pa. 160 (1944)

36 A.2d 800

Trapp et al., Appellants, v. Laffey et al.

Supreme Court of Pennsylvania.March 27, 1944.
April 10, 1944.

Judgments — Res judicata — Mortgages — Cancellation — Forgeries — Previous dismissal of petition to open judgment — Act of March 27, 1862, P. L. 192.

Where a petition was filed under the Act of March 27, 1862, P. L. 192, to have a mortgage declared a forgery and cancelled of record, and it appeared that petitioner had previously filed a petition to open judgment on the bond accompanying the mortgage, on the ground that the signatures were forgeries, which had been dismissed, it was Held that the matter was res adjudicata and that the second petition was properly dismissed.

Submitted March 27, 1944.

Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and HUGHES, JJ.

Appeal, No. 122, March T., 1944, from decree of C. P., Allegheny Co., Jan. T., 1944, No. 1529, in case of Edna B. Trapp et al. v. Catherine M. Laffey et al. Decree affirmed.

Page 161

Petition under Act of 1862 to cancel mortgage of record.

The facts are stated in the opinion by MARSHALL, J., of the court below, as follows:

The plaintiffs and their co-mortgagors, who executed a bond and mortgage dated February 9, 1920, for $1,800.00, now appear before the Court by rule based upon the Act of March 27, 1862, P. L. 192, under the provisions of which the Court has directed to issue direction to the Sheriff on application of a mortgagor, who claims forgery of the mortgage, to notify the mortgagee that his mortgage is being attacked, giving the Court the right to satisfy the mortgage or direct that a jury trial be held to determine whether the mortgage is a forgery or not.

Why the rule was granted we are unable to understand because the same matter has been before this Court on a previous question when the question of forgery was decided in favor of the defendants.

No appeal was ever taken from that decision and now, after twenty years or more, the plaintiffs again tried to get this Court to act in their behalf.

The original petition to open the judgment was not introduced until the assignee of the judgment had, after the judgment had been renewed and revived by scire facias, sold at Sheriff’s Sale the property described in the mortgage and had applied to the Court to have the amount of the deficiency judgment determined. A year and a half after the decision of this Court declaring that there was no ground for declaring the mortgage signatures forgeries, the plaintiffs again appear and in effect say that they had not called attention to the Act of 1862 before mentioned.

In our judgment the plaintiffs have exhausted their remedies and it is now too late to come in under the Act

Page 162

of 1862. The matter is res adjudicata and the rule is therefore discharged.

Plaintiffs appealed.

Van A. Barrickman and U. G. Vogan, for appellants.

Waldo P. Breeden, for appellee.

PER CURIAM, April 10, 1944:

The decree of the court below in the above-entitled case is affirmed on the opinion of Judge MARSHALL, costs to be paid by the appellants.