Lyons v. Philadelphia Savings Fund Society

Opinion by Kephart, J., The only matter for our consideration is the effect of Equity Rule No. 68. When the case of Robinson v. Harshaw, 63 Pa. Superior Ct. 482, was before this court, the decree that was entered by the court below and [577] here affirmed was as follows: “In accordance with Rule 68 of the Equity Rules, I find the plaintiffs’ case has not been sustained and that the bill should be dismissed.” Rule 68 reads: “If the judge or referee, upon the close of complainant’s evidence, shall be of the opinion that the case made in the bill has not been sustained, he shall have power to enter a decree of dismissal without hearing evidence on behalf of the defendant. Such decree shall have the effect of a nonsuit at law, but a refusal of the court, after motion and argument, to change the decree, shall be considered a final decree' for all purposes. The court in banc in every such case shall file an opinion specifically setting forth its reasons for refusing to change the decree of dismissal.” No evidence was there taken in behalf of the defendant. While some had been offered, it was not received, and the record shows there was no evidence taken on behalf of the defendant when the court made the decree. We are not satisfied, from our examination of the court’s opinion, that there was any attempt to determine the case on its merits. From the record, as it is now presented, we conclude that the court below was right in holding that the dismissal of the bill under Rule 68 was in effect to enter a nonsuit at law. The words “the decree shall be considered final for all purposes,” after argument in banc, does not enlarge the original scope of the nisi decree so as to make it a final decree on the merits. It does cause the decree thus entered to be such final decree as enables the complainants to appeal or enter a new action as in the case of a nonsuit. In Thomas v. Borden, 222 Pa. 184, the court says: “This dismissal of the bill without hearing evidence on the part of the defendant was under Equity Rule 68, and the effect of it was a nonsuit at law.” This was after argument before the court in banc. The decree of the court below is affirmed.