The opinion
Disney,
dissenting: I must dissent from the views expressed in the majority opinion. I feel that the sound and established principle of reliance upon res adjudicata is by the majority subordinated to an idea not safely applied here, that is, the idea that a local rule of property controls. The Fitch and Blair cases both involved supervening decisions by the state court of last resort, recognized by all as able to lay down property rules for the state. Here only an inferior court has spoken, since the decision relied upon for res adjudicata. The parties to the proceeding in the inferior court are not the same as herein, so that res adjudicata principles do not apply. Therefore the decision of the inferior court must depend upon whether it has effect to lay down a rule of property, overriding res adjudicata. Such opinion would be at-most persuasive authority in another local court of the same grade, and would not be recognized as conclusive by such other court. Even if one of the parties were the same, such other inferior court would not be bound by a decision of a coordinate court. Here only one of the parties, the Commissioner, is the same. I think we should not be more concluded by an inferior court than is another inferior court of the same grade, as against reliance upon res adjudicata. Local inferior courts, many in number, might differ widely in opinion upon like facts, and are inherently unable to lay down a local rule of property, in the absence of such common parties as to cause res ad-judicata. We have a plain case of res adjudicata here, and I think we should rely upon it, in the absence of a dictate from the state court of last resort, binding as a property rule.
Moreover, since In re Bailey's Estate, 291 Pa. 421 , states that, “A review is a matter of right where the bill is founded on errors of law appearing on the face of the record”, it seems to me that the decision of the local court can not, within the five-year period for review, be relied on in the absence of a finding that no such errors of law appeared on the face of the judgment relied on.