182 A. 536 | Pa. | 1935
Mary A. Boudwin filed her bill in equity in the court below against her husband, Prince Albert Boudwin, a nonresident of the Commonwealth, complaining that he had deserted her in the County of Delaware and had refused to provide her with support. She invoked the remedies provided by the Acts of May 23, 1907, P. L. 227; April 27, 1909, P. L. 182, and July 21, 1913, P. L. 867, 48 P. S., sections 131-132, against the defendant's property, real and personal, located in the County of Delaware, praying the court to direct a seizure and sale or to mortgage sufficient of the estate to provide the necessary funds for her support. In the bill she did not set forth any particular property belonging to defendant, but contented herself with the allegation "that the said defendant has property, both real and personal, in the County of Delaware."
Following the filing of the bill plaintiff petitioned the court to direct service of the bill on defendant outside the jurisdiction with the usual endorsements calling for the entering of an appearance and the filing of an answer, with notice that failure to appear and answer would result in a decree pro confesso. Upon this petition the court entered a decree directing that service be made upon defendant wherever found and that upon return of service the case should proceed with the same effect as if service had been made within the jurisdiction. An affidavit was filed stating that service had been made upon defendant in the City of Wilmington, State of Delaware. Appearance was entered for defendant de bene esse, and he petitioned the court to set aside the *149 service. This the court refused to do and made an order directing defendant to appear and answer. The appeal is from this order.
The order is unwarranted. The acts of assembly authorizing a proceeding such as this one could not grant authority to a chancellor to require a defendant outside the jurisdiction of the court to appear and answer. The proceeding contemplated by the statutes is against the property of a defendant who is outside the jurisdiction and is one purely in rem. It may be proper to give a defendant beyond the jurisdiction notice of the pendency of such a proceeding. He may ignore the notice if he likes. The proceeding will go ahead against any property of his within the jurisdiction which the court has taken within its grasp. This in effect is what we decided in Shreve v. Shreve,
In Hughes v. Hughes,
One other matter requires attention. The bill mentioned no specific property owned by the defendant in the county and simply stated that defendant had property, real and personal, therein. Such an averment was insufficient upon which to found jurisdiction. The property of the defendant which the court is asked to seize must be specifically set forth in the bill. This matter was not adverted to in the court below and for that reason we shall not direct the dismissal of the proceeding. We authorize the court below to permit plaintiff to amend in order that the proceeding may go forward in the way the statute contemplates.
The order of the court below is reversed and set aside with a procedendo. Costs to abide the final result.