44 Pa. Super. 118 | Pa. Super. Ct. | 1910
Opinion by
The grounds for a divorce averred in the libel were willful and malicious desertion and such indignities to the person of libelant as to render her condition intolerable and life burdensome, thereby forcing her to withdraw from the house and family of respondent. The subpoena was not served upon the respondent, no rule to take depositions was served upon him, and he did not appear and defend. The court below appointed a master who returned to the court, in writing, the testimony taken before him, with his report thereon, recommending that the
The parties were married at Newark in the state of New Jersey on April 4, 1889. The libelant had prior to that time been a citizen and resident of the state of New Jersey and the respondent a citizen and resident of the state of New York. After the marriage the parties lived together in the city of Brooklyn, New York, which thus became their common domicile. They separated after a few months of married life and, so far as revealed by the meagre evidence in this case, have not since cohabited. The appellant filed her libel in the court below, on October 30, 1907, averring that she was a citizen of Pennsylvania and had resided therein for one whole year previous to the filing of her libel. The evidence established that the respondent had never been a resident of Pennsylvania, and so far as disclosed he has never come within the limits of this commonwealth, but he is still a .citizen of and resides in the state of New York. The learned counsel representing appellant have submitted a very interesting brief of argument, in support of their contention that the courts of Pennsylvania have jurisdiction to decree a divorce for a cause which occurred outside of the state, where the party seeking the divorce has subsequently become a resident of Pennsylvania, although the respondent has never come within this state and has not been legally served with process in the proceeding. Whether the courts of Pennsylvania have jurisdiction to decree a divorce for such a cause, occurring outside of the state, when the parties were not citizens or residents of this commonwealth, when the injured party subsequently becomes a resident of Pennsylvania, but the respondent never comes within the borders of the commonwealth and is not legally served with process; may be a very interesting question, upon which the provisions of the Act of April 28, 1903, sec. 1, P. L. 326 certainly have a very direct bearing, but the evidence here presented does not warrant
The foundation of the jurisdiction in divorce proceedings is, mainly, the Act of March 13, 1815, 6 Sm. L. 286. Section 11 of that statute provided that the benefit of the legislation should be denied a libelant “who is not a citizen of this state, and who has not resided therein at least one whole year previous to the filing of his or her petition or libel.” Under that statute a libelant must be both a citizen and resident of the state. Even if it be assumed that this rule has by subsequent statutes been so modified as to confer jurisdiction upon the courts to grant relief to a libelant who, while not technically a citizen of the state, has actually resided within the state one whole year previous to the filing of his or her petition or libel, the burden is still upon the libelant to prove the jurisdictional fact of residence. Section 2 of the act of March 13, 1815, requires that the libel be exhibited “to the judges of the court of common' pleas of the proper county where the injured party resides.” There can be no question as to the time when this jurisdictional fact of residence is to be determined; the party must reside within the county at the time the libel is presented, when he or she seeks to obtain a divorce from a respondent who has no residence within this commonwealth. Sections 2 and 11 of this statute, both of which deal with the fact of residence as related to jurisdiction, must be so construed as to bring them into harmony. The manifest intention of the legislature was that the libelant must reside in the state at the time the libel is presented and must have so resided for at least one whole year immediately before such filing.
The decree of the court below is affirmed and the appeal dismissed at cost of the appellant.