
    ULSHAFER’S APPEAL.
    An injunction to restrain the cutting of timber was issued after a full argument. Afterwards judgment for want of an answer was taken. Subsequently while an attachment for disobeying the injunction was pending, an application by the defendant to have the judgment taken off because he did not understand! English, or the purport of the equity proceedings, was held to be too late.
    The bill averred that defendant acquired possession under alease from plaintiff. Held that defendant not having made answer the Court was not bound to-dismiss the bill as an ejectment bill, and dissolve the injunction ; because defendant in his application to open the judgment, claimed the possession.
    Where the rule to answer was served on the defendant’s counsel and judgment, regularly taken for want of an answer, the refusal of the Court to open the-judgment and allow an answer to be put in, is not ground for reversal.
    Appeal from Court of Common Pleas of Schuylkill County, No. 30, January Term, 1883. In Equity.
    John P. Hobart, Trustee, was plaintiff in a Bill in Equity to restrain Jacob Ulshafer and others from cutting timber. On June-14th, 1880, judgment pro confesso was taken against Ulshafer. On> Sept. 6th, 1880, a rule for attachment was granted. On Sept.. 13, 1880, Ulshafer filed an affidavit asking that judgment be opened so that he might make defence. On September 20th, 1880, the-application was refused and the following opinion delivered by
    Pershing, P. J.
    The bill in equity in this case was filed to prevent Jacob Ulshafer from cutting down timber, and the other defendants from cutting and taking away timber under sale of such right to them by Ulshafer from a tract of land called “Angelo,” now situate in Norths Union township in this county. A patent was granted for this tract to Walter Stewart on March 24th, 1*796, the title to which became by due course of conveyances vested in Wm. A. Budd in» February 1845. By written agreement dated March 24th, 1845, Solomon Ulshafer, the father of Jacob, rented this tract from Budd for the term of one year, “he paying five dollars rent and all ,the taxeslevied and leviable on the same within the term.” Solomon Ulshafer held possession under this agreement until August 22nd, 1854, when a new written lease was made for one under which he agreed to pay the same rent and all the taxes. Both of these leases contained stipulations on the part of Ulshafer to keep the premises in repairs and to leave them so, and that he would not •cut nor allow to be cut any timber standing on the land, nor do, nor permit waste. Solomon Ulshafer continued on the land as tenant till his death about the year 18*70. Jacob Ulshafer lived with his father on this land before and at the time of his father’s death, and ■continued in possession as a tenant under the agreement made between his father and Wm. A. Budd. The estate and interest in the land at the time of the filing of the bill in equity were vested in the plaintiff. The facts having been established to the satisfaction of the Court the preliminary injunction granted in the first instance was on hearing continued. On Sept. 6th, 1880, an affidavit was presented to the Court charging Jacob Ulshafer with cutting timber from the land in violation of the injunction issued to restrain him, whereupon a rule was granted to show cause why an attachment should not be granted returnable on Monday, the 13th. On the day of the return the affidavit to set aside the judgment was presented. It sets forth that he (Ulshafer) being imperfectly acquainted with the English language, never understood the equity proceeding; that he employed B. W. Cumming, Esq., as his counsel who advised him as to the title; that the rule to plead or answer was served on his counsel and that the deponent had no' knowledge of it.
    The argument on the continuing of the injunction took place Nov. 12, 18*79, and 1 believe Mr. Ulshafer was present. Mr. Cumming read his affidavit in which he made claim to the land <on the ground of his possession and payment of taxes. Mr. Cumming made a number of points ; 1. That the question of title must be tried at law and that equity had no jurisdiction. 2. Where ti-fie is denied by the answer an injunction will not lie. 3. Where there is doubt an injunction will be relused. 4. The defendant claims both title and possession, and equity will not restrain him from cutting timber though it constitutes the chief value of the premises. 5. The defendant is in possession, has been for nine years; has paid taxes; is in possession under descent cast by his father, and has never attorned to Wm. A. Budd, or ever heard of the leases. My notes show that these propositions were supported great by a number oí authorities in an elaborate argument by Mr. Cumming, one of the most experienced members of the bar. It is marvelous if Mr. Ulshafer did not know what all this meant. The facts showed no title in him whatever. The Court felt bound to restrain him from stripping this land of the timber, which gave it its chief value ; and bis present application made to the Court after all the former legal proceedings, and after an admitted violation of the injunction, and proceedings commenced to punish him for contempt, comes rather late. We can find nothing which entitles him to have the judgment set aside. And now, September 20, 1880, application to set aside the judgment in this case is refused.
    Another application to open the judgment was made, but on September 4th, 1882, it was refused and the following opinion delivered by
    Pershing, P. J.
    An application to open the judgment in this case upon the same grounds now before the Court was presented and disposed of in an opinion filed September 20th, 1880, refusing it. Some additional testimony was read on the argument of the present applica-. tion.
    Then as now the defendant claimed title to the William Stewart, Jr., tract of land, “by descent cast on the death of his father, Solomon Ulshafer,” and payment of taxes for nine years. He makes this claim it would appear from his own deposition, to the exclusion of his brothers and sisters, who up to .this time have asserted no, title to this land.
    The evidence shows that Solomon Ulshafer was in possession of the Stewart tract as the tenant of Wm. A. Budd, under written leases which bound said tenant to pay all taxes and prohibited him from cutting timber growing on said land. In addition to the evidence given in the former application to open this judgment there is now before us a sworn copy of the testimony of Solomon Ulshafer given in open court on the trial of the ejectment suit of Franklin Stewart vs. Solomon Ulshafer, No. 130 June Term, 1868, (reported 21 Smith 170) in which he stated that the land belonged to Wm. A. Budd, and that he occupied it under a lease as his tenant. Solomon Ulshafer therefore had no title to the land, himself being the witness, and therefore, none could descend from him to his son Jacob, the present defendant. We think no sufficient cause has been shown why the judgment should be disturbed.
    And now September 4th, 1882, the application to take off the judgment pro eonfesso is refused.
    On the same day the Court awarded an attachment.
    Ulshafer appealed to the Supreme Court assigning as error, that the Court erred:
    1st. In not dismissing the bill for want of jurisdiction.
    2nd. In granting a preliminary injunction.
    3rd. In entering judgment pro eonfesso against Ulshafer and not allowing him to answer.
    4th. Issuing the attachment.
    
      J. Ryon, Esq., on behalf of appellant
    argued the bill was an ejectment bill, as Ulshafer had possession and claimed title; North Penn Coal Co. vs. Snowden, 6 Wr. 48; Missimer’s Appeal, 11 Norris 168; Long’s Appeal, 11 Norris 171.
    The defendant being in possession and there being no privity of contract or estate the Court had ho jurisdiction to grant an injunction; High on Injunctions, Sections 429, 458, 459; Shreve vs. Black, 3 Green’s Ch. 279; Smith vs. Collyer, 8 Vesey 89; West vs. Walker, 2 Green’s Ch. 279.
    When Ulshafer swore he did not understand the proceedings the Court should have opened the judgment and allowed him to answer; Leach vs. Ansbacher, 5 Smith 85.
    As the Court had no jurisdiction, the proceedings for attachment should be regarded as nullities: People vs. Sturtevant, 9 N. Y. 226; Elliott vs. Piersol, 1 Peters 340; Wilcox vs. Jackson, 13 Peters 511.
    
      
      John P. Hobart & G. P. Kaercher, Esqs., contra.
    
   The Supreme Court affirmed the judgment of the Court below on May 7th, 1883 in the following opinion :

Per Curiam.

As judgment was taken pro confesso for want of an answer the first and second assignments of error have no force. They cannot now be considered based on anything shown by the record. The third is without merit. The appellant had full opportunity of answering, but failed to do so after due notice.

The preliminary injunction having been regularly decreed and standing unimpaired, there was no error in the Court issuing an attachment against the appellant for disobeying the same.

Decree affirmed and appeal dismissed at the costs of the appellant.  