Appeal 377 | Pa. Super. Ct. | Mar 12, 1928
Argued March 12, 1928. On January 4, 1927, the wife of the defendant lodged an information with a justice of the peace in Delaware County and the defendant was brought into court charged with non-support and desertion under the Act of April 13, 1867, P.L. 78. On February 9, 1927, there was some prospect of amicable adjustment and the case was continued. The wife then resorted to the Municipal Court of Philadelphia where after hearing the case, an order was made, July 29, 1927, requiring the defendant to pay $30 a week for the support of his wife and children. This order was revoked on September 20, 1927 upon the petition of the wife and all arrears were remitted. On September 23, 1927, under the original proceedings, the case was heard by the Delaware County Court and an order made upon the defendant to pay for the support of his wife and children $35 a week, said order being the subject of this appeal.
The defendant questions the jurisdiction of the Delaware County Court for the reason that an order had previously been made by the Municipal Court of Philadelphia. It is well established that without reference to where the desertion took place, any court having jurisdiction of the subject matter, may make an order in proceedings in desertion cases if the defendant be found in the Commonwealth. It will be noticed that proceedings started in the Delaware County Court were not disposed of at the time the other proceedings were instituted in Philadelphia. The order made in Philadelphia did not oust the jurisdiction of the Delaware County Court. No doubt the Municipal Court acted in good faith and without knowledge of the pending proceedings, but when the Delaware County Court acquired jurisdiction of the subject matter of the case, no other court could by its order limit the power of the Delaware County Court to dispose of the case. See Nevin v. Catanach,
The vacation of the order of the Municipal Court was a legal ending of that proceeding and even if we concede arguendo that the court had jurisdiction of the subject matter, its contact with the case ceased when the discontinuance was allowed and the defendant was under no definite legal compulsion to pay for the support of his wife and children. The vacating of the order by the Municipal Court was not a bar to subsequent action by the court of another county. Com. v. Carson,
The appellant contends that even if this be true there must be some change in circumstances shown and some definite statement of new facts upon the hearing before the court can make the order. This might be argued with some force if it were not for the fact as already stated that the jurisdiction of the Court of Delaware County was never ousted.
The vacation of the order in Philadelphia left the woman without any support. The payments made to the wife under the order of the Municipal Court of Philadelphia were not voluntary, even although the power of the court to make such order could be questioned. When the case came up for final hearing in Delaware County, the fact that such payments had been made was not proof that the deserting husband had not been in default by failing to support his wife. The payments not having been voluntary, the wife had a right to secure the future payments through an order of court. The whole case was before the Delaware *285 County Court and the part of the testimony printed justified the order made, such order not being reversible, except for abuse of discretion.
The assignments of error are overruled and the order is affirmed.