191 A. 634 | Pa. Super. Ct. | 1937
Argued March 8, 1937.
This case is governed, on the main point involved, by our recent decision in Com. ex rel. Isaacs v. Isaacs,
In that case a wife brought proceedings for support against her husband, under the Act of April 13, 1867, P.L. 78, 18 PS 1251, et seq., in the municipal court (see Act of July 12, 1913, P.L. 711, sec. 11, and amendments; Com. v. Hopkins,
In the present case, Mrs. Richards, in 1934, brought non-support proceedings against her husband, the appellant, in Northampton County, under the Act of 1867, supra. The matter came up for hearing before the court of quarter sessions, — to which jurisdiction is specifically given by the Act, — and on June 29, 1934 an order of $15 a week was made against defendant. No appeal was taken from that order. On June 15, 1935, the defendant filed a petition asking the court to strike off the order of June 29, 1934. The petition was dismissed, and no appeal taken from that order. On April 22, 1936 the defendant filed his petition to revoke or modify the order of June 29, 1934. After rule granted and hearing, the petition was dismissed. From this order the defendant took the present appeal.
The matters presented as ground for reducing or revoking the order of support did not relate to any change in conditions or circumstances of the parties occurring since the entry of the order of support. The ground relied on was that, on August 29, 1927, the parties, husband and wife, had entered into an agreement of separation, under which the husband agreed to pay his wife the sum of twenty-five dollars a week, and that this agreement was a bar to the proceeding for support under the Act of 1867 (Com. v. Richards,
The fact that the parties may have entered into a separation agreement did not deprive the court of quarter sessions of the jurisdiction expressly conferred by the Act of 1867. Com. v.Richards,
In Shimp v. Gray,
In Com. v. Smith,
We had occasion, recently, to consider the distinction between matters which go to the court's jurisdiction of the cause of action and matters of defense to, or in bar of, the action, in the case of Squire v. Fridenberg,
The appellant complains of the inconsistency of the *522 positions taken by his wife, in that she sought in a foreign jurisdiction to enforce the separation agreement shortly before bringing the proceedings in the quarter sessions, under the Act of 1867; but his own position is no less inconsistent, for he attempted in a foreign jurisdiction to have the separation agreement annulled on the ground that he had signed it under duress; and he does not assert compliance by him with its terms.
However, we are not, in this appeal, concerned with the merits of the case as originally presented to the lower court. That order unappealed from is res judicata as to the matters of defense which were raised, or might have been raised, at the hearing.
No proof was presented in the court below, at the hearing on the petition to revoke or modify, of any change in the conditions or circumstances of the parties, occurring since June 29, 1934, which requires or calls for a reduction or revocation of the order.
The order appealed from is, accordingly, affirmed.