The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1900-09-05

In the long-standing equity suit of
A. D. Dean, trustee, against w. w.
Winton and others. Judge Archibald
yesterday handed down an opinion,
overruling the motion of the Defend
ants to dismiss the bill for want of
due prosecution.
The suit is Il somewhat celebrated
one, for the fact that it has been be-
fore the court for thirteen years and
that much other litigation has grown
out of it,
July II, 1871. w. w. Winton, Joseph
church, Isaac Dean and Thomas Livey
became the owners of the Griffin coal
tract of fifty acres in the Second ward
of Scranton. Mr.. Winton took title
and executed a declaration of trust to
each of the others for a quarter inter-
est.
The Church interest was sold by the
sheriff, September s. 1877, and the
plaintiff claims it was bought in by
w. w. Winton for a nominal sum,
under an agreement with Isaac Dean,
the lien creditor that the proceeds
should be applied to the liquidation Of
Church's debts. Isaac Dean being in
debt as executor for the heirs of p. S.
Dean, confessed Judgment to Thomas
Livey, as trustee for the heirs, and at
the sheriff's sale the Dean quarter was
bought in by Livey. a. d. Dean, the
plaintiff in the present case, succeeded
Livey as trustee, and in 1887 he in
stituted suit to secure an accounting
to the Dean heirs, for the Dean and
Church interests.
Winton denied the allegation in ref
n a If hp "a a
the Church interest, and in defense of
the failure to account for the proceeds
from the Dean quarter set up the
claim that he was willing to account,
but could not do so because of the un-
willingness of the plaintiffs to allow
him anything for his services in man
aging the property for twenty-five
years, during which time it had earned
$4,000
The story of the litigation is told by
Judge Archibald in the opinion:
The bill was filed July %, 1857, and has there.
fore been pending over thirteen years. 1t is
based on an alleged trust with regard to land,
the purpose being TO secure from the defend
ants an accounting for the proceeds. After an
Intellectual effort tC obtain a preliminary in,
junction restraining the disposal Of the property
the suit was allowed to lie dormant without any
further action until June Is, 1898, when a rule
was taken on the defendants to plead, answer
or demur, in response 10 which an answer was
put in July 2l, following:
There was then another delay OF seven month;
until February, 1891, when the case was put al
issue by a replication, and referred by argu
ment TO W. W. Lathrope as examiner and mas
ter. This was the last that was done in the case
and we are now moved to dismiss it for want o
due prosecution.
Not tbp
pared to say that there should be a summary
dismissal Of the bill. The rights involved in II
are important, and ought to be disposed Of only
on due proof At one time, as appears by tn,
agreement of July lG 1890 there seems to hav,
been an effort to adjust them, and for the las
four years they have been the subject Of litiga
ton in the orphans court before the audto
appointed to distribute the effects in the hand
of the executors Of Catherine Winton, deceased
The auditor has disallowed the claim on tn
grounds that the trust asserted ought to be Cs
tablished by bill, in the common pleas, whcl
is Just what we have here.
A motion to dismiss for the reason urged |
largely addressed to the discretion of the court
and it should not prevail in on a Judgment il
the present instance The delay is not charge
able to the plaintiffs alone. The defendants di
not put in their answer until six years after tn
bill was filed and then only in response to a rul
to do so, and nearly year later they agreed T.
reference to a master, thus recognizing tn
suit as still in force and admitting their respon
sibility TO meet and defend IT, Since then the
could have set it down at any time for a hear
ing and If the plaintiff failed to put in his cas-
the master would have been bound to dismiss il
Under the circumstances there has been such
acquiescence in the delay that the defendant
are not in a position to take advantage Of il
We think the case should proceed to a hcarin
and be disposed Of on its merits
The motion to dismiss the bill for want {
due prosecution is overrued.
X. ". Archibald, F. j.