62 Pa. Super. 118 | Pa. Super. Ct. | 1916
Opinion by
On October 19,1910, the Gonrt of Quarter Sessions of Philadelphia County, at a hearing at which all the parties in interest were present, made an order that Valentine Bednarek pay the sum of six dollars a week for the support of his wife, Veronica Bednarek, and his minor child, Elizabeth. The proceeding was instituted by the defendant’s wife under the Act of 1867. On January 26, 1912, the defendant presented a petition to the Court of Quarter Sessions asking that the amount imposed by the court be reduced, which petition was refused. On November 25, 1913, a petition was presented to the Court of Quarter Sessions by the defendant for an order vacating the order of October 19, 1910. This petition was based on the fact that a divorce was granted to the petitioner on November 25, 1913, and that the minor child, Elizabeth, was not the child of the defendant. On consideration of this petition the court vacated so much of the order of Oct. 19,1910, as required the defendant to contribute to the support of his wife, Veronica, and reduced the amount stated in said order to a payment of three dollars per week for the support of the child, Elizabeth. On Jan. 3,1914, the defendant presented a petition to the same court praying for a rule to show cause why the order for the payment of three dollars a week for the support of the minor child, Elizabeth, should not be revoked. The same day a rule to show cause was granted. On Oct. 22, 1914, the parties in interest appeared in the Municipal Court of Philadelphia for a hearing on the petition presented in the Court of Quarter Sessions on January 3, 1914, and the court heard the case. On Nov. 25,1914, the rule of the Court of Quarter Sessions granted Jan. 3, 1914, was discharged
There is the further objection that the question which the appellant proposed to try was res adjudicata. The decree of the Court of Quarter Sessions of Oct. 19,1910, involved the legal liability of the defendant for the support of Elizabeth as did the order of Jan. 26, 1912. It was a material inquiry in the original hearing whether Elizabeth was in the class “children” as described in the Act of 1867; and that question having been decided by a court of competent jurisdiction it was not within the capacity of the Municipal Court to retry that issue. It was said in Schwan, et al., v. Kelly, et al., 173 Pa. 65, .that “the rule that what has been judicially determined shall not again be made the subject of controversy extends to every question in the proceeding which wás legally cognizable and applies where á party had neglected the opportunity of trial or has failed to present
The decree is affirmed at the cost of the appellant.