19 Pa. Super. 586 | Pa. Super. Ct. | 1902
Opinion by
This is an appeal by the libellant from a decree of divorce a vinculo matrimonii. It appears from the pleadings and testimony that the parties were married on April 10, 1900, in the city of New York, the libellant being at that time a resident of that city and the respondent a citizen of this commonwealth residing in Philadelphia. The original libel was filed on March 28, 1901, less than a year after the date of the marriage, when the libellant’s residence in this commonwealth began. A subpoena was awarded by the court and duly served upon the respondent, who entered his appearance by counsel. On May 21,1901, the court granted the libellant “ leave to withdraw from the record the libel heretofore filed in this cause and file the within libel as an amended libel therein.” This charged, as did the original, that the respondent had, by cruel and barbarous treatment, endangered the life of the libellant, and had offered such indignities to her person as to render her condition intolerable and life burdensome and thereby had forced her to withdraw from his house and family. The respondent filed an answer to the amended libel denying these allegations, but not denying the allegations as to • the libellant’s residence and citizenship; a master was appointed before whom her testimony was given, the respondent appearing at the hearing by counsel; and on July 1, 1901, the cause terminated in a decree of divorce. On November 1, following, the libellant took this appeal. In view of some of the questions raised, it seemed to us important thus to refer in detail to the proceedings and the dates.
On or about the. day the appeal was taken, and before the record was returned, the appellant filed a paper entitled in the caption “ assignment of error,” to which the appellee excepted. Upon consideration of his exceptions and upon inspection of the paper, a rule was granted upon the appellant “ to show cause why said paper should not be expunged from the records of the court.” This rule was made absolute. This order applied in terms, and was so intended, to the whole paper. We allude to this matter, not with any intention of commenting- on the
The Act of June 11,1891, P. L. 295, as did the actof March 18, 1815, 6 Sm. L. 286, provided, that “ either of the parties, in any suit or action for divorce now pending or that shall hereafter be brought, after the final sentence or decree, may appeal therefrom to the Supreme Court of the proper district,” etc. This appellate jurisdiction was transferred to the Superior Court by the Act of May 5,1899, P. L. 248. As a prerequisite to an appeal, the appellant, or some one for him, must make and file an affidavit, that he has “ suffered injustice by the sentence, order, judgment or decree ” from which he appeals: Act of May 19, 1897, sec. 1, P. L. 67. Manifestly, a plaintiff who has obtained a valid judgment or decree for all that he claimed cannot allege that he has “suffered injustice ” by the judgment or decree. Hence, such person cannot appeal, and this we take it, is as true of a proceeding in divorce as of any other civil proceeding, notwithstanding the generality of the language of the act of 1891, supra. But in case of a decree of divorce, not merely voidable for error or irregularity, but absolutely void for want of jurisdiction in the court that pronounced it, a different question is presented. “ When the jurisdiction does not exist, and usurpation takes its place, then all the acts of the tribunal are void ‘ and of none effect,’ and may be so treated in any collateral proceeding: Voorhees v. Bank of the United States, 10 Peters, 449; Phillips’s Appeal, 10 Casey, 489. Where there is no jurisdiction there is no authority to pronounce judgment; and consequently a judgment so entered is so but in form and similitude, and has no substance, force or authority : ” Miltimore v. Miltimore, 40 Pa. 151. An appeal by the libellee from such a decree would not be dismissed, because, being a nullity, it did him no injury. This is too plain for argument. But such a decree is no more injurious to the libellee than to the libellant. It is a blot upon the record, and is effectual only to cloud the marital relation, and, possibly, raise doubt in the future as to the status and rights of
There is nothing in the Act of March 10, 1899, P. L. 8, empowering the court of common pleas to appoint masters in divorce proceedings,' which makes the formal approval of the master’s report an essential prerequisite to a valid decree, Nor is there any statute requiring a rule to show cause why divorce should not be decreed to issue and he made absolute before a decree maybe made. We assume that there is such a rule in the court below but that it was complied with, as well as that the master’s report was approved, is to be presumed from the following docket entries : “ June 15,1901, master’s report filed • and approved: June 17,1901, rule for divorce, a v. m.; June 17, 1901, proof of service of final rule filed ; July 1, 1901, rule absolute, divorce decreed and 23roelamation made,” The papers
“ Objections to jurisdiction are of two classes, between which there is a clear and well settled distinction: first, those relating to the authority of the court over the subject-matter; and, secondly, those relating to its authority over parties. Objections of the first class cannot be waived nor jurisdiction obtained by acquiescence. . . . But in the second class the rule is different. The party exempt from jurisdiction may waive his personal privilege, and if he does so the jurisdiction of the court is complete. Thus if the defendant is not duly served with
• It is objected in the first place that the court had not jurisdiction to hear and determine the cause, because the libellant was not a citizen of the state, who had resided therein for one whole year previous to the filing of the libel. This was true, in part at least, on the date of the filing of the original libel; and consent of a party as expressed by his appearance cannot in divorce create a jurisdiction over the subject-matter which the court would not otherwise have. No matter how expressed, consent of the parties, even with the consent of the court added, cannot give the court jurisdiction of a libel in divorce based on the allegations of cruel and barbarous treatment or of indignities to the person, unless the libellant shall have resided in the state at least one whole year previous to the filing of his or her petition or libel: Act of March 18, 1815, sec. 11,6 Sm. L. 286. This prerequisite is not in the nature of a personal privilege or safeguard which the respondent may waive, or the court, in its discretion, dispense with. But at the time the amended libel was filed, May 21, 1901, this condition had been fulfilled; at least it was so alleged by the libellant in her libel and there is nothing in the answer or the testimony to show the contrary. She alleged “ that immediately after their marriage,” April 10, 1900, “the libellant and the respondent resided together in Philadelphia in the state of Pennsylvania and have since resided at Philadelphia in the state of Pennsylvania; ” also, that “her residence within the state of Pennsylvania is that of her husband as hereinafter set forth” (No. 2018 Green street in the city of Philadelphia), “ and that she has been a citizen of the state of Pennsylvania and hath resided therein for a period of one whole year previous to the filing of this amended libel.” True, she alleged that her “present residence,” that is, on the
It is objected that the decree is void and of no effect because a subpoena was not issued and served on the respondent after the amended libel was filed. But it is to be borne in mind, that the subpoena issued upon the original libel had been duly served upon him, that he had entered his appearance to the action, and that he filed an answer to the amended libel and went to trial without raising the objection. In any other civil proceeding that can be mentioned, this would be a submission by the respondent to the jurisdiction of the court and would be as effectual to bring him within it as personal service of the process. The case of Scott v. Noble, 72 Pa. 115, is not in point. A joint suit was commenced in Massachusetts against Grafton, a resident, who was served, and Noble, a nonresident, who was not served, The court made an order that the plain
Finally, it is urged that the libellant was not sufficiently specific in detailing in her testimony the acts constituting the intolerable treatment alleged in the libel. As has been declared repeatedly, marriage is not a mere personal relation but a public institution, on the purity and integrity of which the welfare of society depends and for this reason marriages cannot be dissolved by the consent of the parties, nor can the court enter a decree of divorce by default in the absence of evidence to support the charge, or upon evidence so flimsy as to compel the conclusion that the alleged cause for divorce does not exist. But this is not such a case. The libellant- testified to a course of treatment on the part of the respondent, beginning the day after their marriage and continuing during all the time they lived together, which she described as insulting, humiliating and de
The decree is affirmed.