46 Pa. Super. 291 | Pa. Super. Ct. | 1911
Opinion by
The libel in this case, based on allegations of indignities to the person and cruel and barbarous treatment, as grounds of divorce, was filed on November 17, 1908. The subpoena was personally served, and the respondent appeared and filed an answer. It appears from the excellent report of the master, which is fully sustained by the evidence, that the parties were married in the city of New York on May 25, 1908; that thereafter they cohabited as husband and wife in the city of Brooklyn, New York,
On October 26,1909, by leave of court, the libelant filed an amendment of the libel as to paragraphs 2 and 3 thereof, alleging, as to paragraph 2, that at the time of the filing of the amendment the libelant had been a citizen of the state of 'Pennsylvania and had resided therein for the period of one whole year previous to the filing of the amendment; and, as to paragraph 3, alleging that the cruel treatment by respondent and indignities offered by him to libelant’s person forced her to withdraw from his house and family on or about September 9, 1908, instead of October 25, 1908, as set forth in the libel originally filed. It is argued that in computing the year’s residence the date of filing the amendment should be considered as the true date. Counsel rely upon the case of English v. English, 19 Pa. Superior Ct. 586, as authority for this contention. But upon a moment’s reflection it will be seen that it does not sustain lnm. There the court granted the libelant “leave to withdraw from the record the libel heretofore filed in this cause and file the within libel as an amended libel therein.” The respondent filed an answer to the amended libel, denying some of its allegations, and a master was appointed, before whom the libelant’s testimony was given, the respondent appearing at the hearing by counsel. This was the filing of a new libel, and not a mere amendment of the libel already filed. The distinction, as the learned master says, is not one of form, but of substance, and an amendment to a libel which the court has no jurisdiction to entertain cannot avail the libelant. The words of the statute are plain and not open to a con
The evidence fully sustains the charges as to indignities to the person and cruelty, but for the reasons above stated the court was without jurisdiction and therefore was right in dismissing the libel.
The decree is affirmed.