Wilson v. Wasson

Upon exceptions to findings of fact and conclusions of law, argued before Swearingen, Reid and Kline, JJ., the following opinion was filed by

This case is before the court upon exceptions to findings of fact and conclusions of law, and the decree nisi requiring an accounting.

The exceptions filed by the principal defendants (E. L. Wasson, W. M. Campbell and W. W. Wasson) are dismissed.

The exceptions filed by the other defendants relate mainly to the ruling that there is but one complainant in the case, and they assert that they cannot, therefore, participate in the accounting ordered. No such question was raised in the pleadings nor at the trial, and it was assumed that the general rule applied.

The complainant alone filed the bill. While he may not have been required to include these exceptants as defendants, yet it was not improper to do so, *12because he paid his subscription in full and he did not know what the situation was with respect to these other subscribers. They then might have asked leave to intervene as complainants, and we do not perceive how the court could have refused their request, had their allegations been sufficient. Or, they could have filed cross-bills, thereby notifying the complainant and the principal defendants what their claims were and against whom their demands were made, and thus the issues would have been rendered clear and the expenses of the trial reduced. But they took neither course. On the contrary, they all filed answers, and, therefore, the replication was directed to their answers as well as to those of the principals. It is true they joined “in the prayer of the bill of complaint for an accounting,” but this was not the only prayer of the bill.

These exceptants now urge that to the rule requiring a defendant to file a cross-bill when he desires affirmative relief there is an exception in case of an accounting. But this is not stating the exception exactly. The language used by the appellate courts in formulating the exceptions to the general rule is “on a bill for accounting, if a balance is found due the defendant.”

But there has been no accounting in this case and no balance has been found due any of the exceptants, nor, for that matter, in favor of the complainant. The decree ordered is that certain defendants account. Consequently, the exceptions must be overruled.

Order.

And now, to wit, June 29, 1923, after argument and upon consideration, the exceptions to the findings of fact and conclusions of law are dismissed.

From Edwin L. Mattern, Pittsburgh, Pa.