12 Pa. Super. 605 | Pa. Super. Ct. | 1900
Opinion by
This is an appeal frotn the judgment and decree of the court of quarter sessions of Philadelphia county in a proceeding under the Act of April 13, 1867, P. L. 78, which provides "‘for the relief of wives and children deserted by their husbands and fathers within this commonwealth,” commenced before a magistrate whose transcript forms the basis of the proceeding and as to the sufficiency of which the appellant especially excepts. No appeal from such a proceeding is allowed by law, and that, taken in this case must be treated, therefore, as a certiorari, under which the jurisdiction of the court below and the regularity of the proceedings only can be considered (Barnes v. Com., 11 W. N. C. 375; Com. v. Tragle, 4 Pa. Superior Ct. 159) and these in effect are the questions raised by the appellant.
It is further objected that the transcript does not show such a charge as is within the act of 1867, and that it further fails to show a binding over of the defendant upon a charge of desertion or, in fact, upon any charge. The defendant waived a hearing and entered into a recognizance with surety for his appearance at the next court of quarter sessions to abide the orders of the said court. He appeared in accordance with his recognizance and was heard, as is shown by the decree of the court, by his proofs and allegations, without objection or exception, so far as the record shows. Having submitted himself to the jurisdiction of the court and having been heard upon the merits of his case, it would seem to be late to assert any technical objection either as to the transcript or the recognizance.
It is further objected that the record does not show upon what charge or for what cause the order to pay was rested. The transcript, however, is not silent upon this subject and shows that he was charged with “ neglect to support the deponent, Kate Hart, and one child,” which, under the provisions of the act of 1867, supra, gave the court jurisdiction and warranted the decree.
The objection that “ the order does not disclose an essential fact, namely, the finding by the court that Hart had sufficient ability to pay the amount of the weekly order ” is not sustained for the reason that it is to be presumed that the court found that fact as a necessary prerequisite to the making of the order. The testimony taken before the court is not before us. It is to be presumed, however, that the defendant presented his whole case, as was his right, in the court below, and that he was heard as to the question of his ability to contribute to the support of lfis wife and children as well as to every other pertinent fact wMch he desired to bring to the consideration of the court.
The decree of the court below closes with, “ Order made with leave to apply for revocation as to the payment for the wife’s support.” The record shows that the defendant presented his petition and affidavit, praying for the revocation of the order, upon which a rule was granted to show cause why the order of maintenance should not be revoked. An answer to this petition was filed and the rule discharged. It is objected “ that the petition for revocation was illegally dismissed, without any hearing.” The modification of the original order
The entire record fails to disclose any substantial ground upon which the defendant is entitled to relief. The decrees of December 28, 1898, and February 28, 1899, are respectively affirmed, and the appeal dismissed at the cost of the appellant.