Whitney v. Jersey Shore Borough

Citations

• 266 Pa. 537
• 109 A. 767
• 1920 Pa. LEXIS 608

Syllabus

<p>Equity — Practice, equity — Demurrer — Answer — Answer overruling demurrer — B ep licaiion — Appeals.</p> <p>1. Where a demurrer is filed to the whole of a hill, and at the same time an answer is filed to the whole bill, the demurrer is overruled by the answer; and if a replication is subsequently filed, and the trial judge certifies that the case came before him upon “bill, answer and replication,” the appellate court must take this as conclusive of that fact.</p> <p>Boroughs — Annexation of territory — Equity—Jurisdiction—Determined, in limine — Establishing legal mght — Tax levy — Certifying to law side — Quarter sessions — Common pleas — Acceptance by borough of the general borough Acts óf April 8, 1851, P. L. 880, and May H, 1915, P. L. 818, 885 — Issue.</p> <p>2. When a statutory remedy is provided, whereby a legal right may be effectually settled, it is necessary to pursue the-remedy, and thus establish the right, before an application for an injunction to enforce such right will be entertained, especially where the right claimed — relief from what is said to be an illegal tax levy— rests in part upon the ascertainment of controverted facts, involved in a proceeding heretofore had under a statute which provides an adequate method, or remedy, for judicially settling those very facts.</p> <p>3. A bill in equity was filed against a borough incorporated under a special act, to declare void and of no effect certain annexation proceedings and from relief from alleged illegal taxation in the annexed territory. Such proceedings were not authorized under the special act by which it was incorporated, and were only authorized where .a borough had accepted the provisions of the general borough Act of April 3, 1851, P. L. 320, as provided by the Act of May 14, 1915, P. L. 312, 325. The bill recognized the probability of the borough having accepted the Act of 1851, and carefully avoided averring that it had not done so. The averments of the bill, and its prayers, indica