55 A.2d 586 | Pa. Super. Ct. | 1947
Argued September 29, 1947.
This is a preceeding for support brought by a wife under section 733 of the Act of June 24, 1939, P.L. 872, 18 PS 4733, which in substance is a re-enactment of the Act of April 13, 1867, P.L. 78, 18 PS 1251 as amended. Commonwealth v. Shankel,
Since the Act of April 18, 1919, P.L. 72, 12 PS 1165, the testimony taken in the court below in a support proceeding is to be reviewed by us on appeal as a part of the record. Commonwealthv. Elliott,
The parties were married on September 5, 1936 and resided together until September 17, 1946, when the relatrix left the marital habitation. The relatrix testified that the defendant on September 2, 1946, committed an assault and battery on her. This is denied by the defendant. The relatrix also testified that the defendant on that date struck at her and swore at her. It is in evidence that a sister of the relatrix had moved in with the couple and that the domestic difficulties between husband and wife were largely caused by her presence in the household. The defendant testified that he had made many efforts to get the sister out of the home and finally, after renting an apartment for her, she left. However, when she left the relatrix went with her and has resided with her since that time.
The burden was on the wife to prove that the husband's conduct justified her in leaving him or that he consented to a separation(Com. of Pa. v. Bachman, *532
Subsequent to the order of the court dismissing relatrix's petition, she presented a petition for rehearing setting forth, inter alia, that because of illness a witness for her was not able to be present and testify at the original hearing. However, no motion was made at any time before or during the hearing for a continuance for the purpose of securing the presence of the absent witness. The petition for rehearing was addressed to the sound discretion of the trial judge, and from a reading of the record we are not convinced that there was an abuse of that discretion.
The Act of May 11, 1927, P.L. 972, amending section 4 of the Act of May 19, 1897, P.L. 67, 12 PS 1136, provides: "No appeal shall be allowed, in any case, from a sentence or order of any court of quarter sessions . . . unless taken within forty-five days from the entry of the sentence or order . . .", and this statute applies to a support proceeding instituted in the Municipal Court of Philadelphia County. Commonwealth ex rel.Bundy v. Bundy,
Appeal dismissed.