56 A.2d 343 | Pa. Super. Ct. | 1947
Argued September 29, 1947. George Allen, appellant, appeals from an order of the court below awarding support in the amount of $10.00 per week to Amanda Allen, his wife, contending that: (1) dismissal, in 1932, of the wife's petition for support renders the present proceeding resadjudicata; and (2) that the proper procedure should have been by a petition to modify the decree of 1932, pursuant to the Act of 1939, P.L. 440, section 1, 17 PS section 263, and not by filing an information against him.
Amanda Allen filed her information against George Allen on April 1, 1947, and a hearing was held before the court on May 12, 1947. The record does not contain any of the testimony. It is argued, however, that the hearing was to be had without the taking of stenographic notes but after the relatrix had been heard, counsel for appellant requested that notes of testimony be taken stenographically. Later, the appellant filed a petition for rehearing ". . . in order to present his (appellant's) case to the court fully and have the testimony taken stenographically and for the purpose of having the order heretofore made on May 12, 1947, modified or revoked." A rehearing was directed to be held July 2, 1947, but *147 on the preceding day this appeal was perfected and consequently the rehearing was not held.
Nor does the record before this Court contain any evidence regarding the 1932 proceedings, and of course the facts upon which the court below at that time based its decree dismissing the proceedings may not be conjectured. There being no evidence in that regard on what foundation can be based the assertion that the instant proceedings are barred by the prior order. Manifestly, we do not know what legal issues were involved or why the case was dismissed. Especially is this true in view of the well established principle that orders in any support case are not regarded as final and, upon cause shown, may be altered, repealed, suspended, increased, or amended: Commonwealth ex rel.Crandall v. Crandall,
Appellant's complaint regarding the procedure followed is equally without merit; prosecutrix could proceed by a petition to modify or by instituting a new proceeding. "A court . . . is authorized to make such changes in support cases as the circumstances and conditions may warrant, or a wife, here, may start an entirely new proceeding after a dismissal of a former case": Commonwealth v. McClelland,
In the absence of the testimony upon which the court below based its order, it is impossible for this Court to comply with the mandate of the Act of 1919, P.L. 72, 12 PS section 1165 (Cf.Commonwealth v. Elliott,
The record is remanded for further proceedings, costs of this appeal to be paid by appellant.