4 Watts 154 | Pa. | 1835
—A writ of mandamus to the judges of the court of common pleas of York county, has been moved for in this case. The proceedings which have given rise to this motion, were commenced in that court by John Kolb the husband, against Mary Kolb his wife, for the purpose of obtaining a divorce from the bonds of matrimony. The causes assigned by him in his libel were: first, that his wife had committed adultery ; second, that she had wilfully and maliciously deserted and absented herself from his habitation, without a reasonable cause, during the space of two years and upwards. The wife, upon being served with a subpoena requiring her to appear and show cause why the divorce should not be decreed, came into court, and after denying the charges contained in the libel against her, alleged that the libellant had committed adultery, and requested of the court that an issue might be formed, for the purpose of having the facts involved in the charges made on both sides decided by a jury. The court accordingly directed the issue to be formed, which was done. It was tried before Judge Franklin, then president of the court of common pleas of York county, and the associate judges thereof;
In regard to the sufficiency of the reason given by judge Durkee for declining to sit as a member or president of the court, to hear and decide on the rule to show cause why a new trial should not be granted, thfere can be no doubt. Indeed, it is admitted that his conduct was perfectly correct, as no consent was given by the parties that he should sit and take part in the decision of the rule.
Next, as to the conduct of the associate judges. They, when asked to proceed and decide on the rule, resolved that they had no authority to do so. Now it must be observed and borne in mind, that it has not been shown that any agreement in writing was made and filed of record by the parties, as required by the act, that the associate judges should, without the aid of a president judge, hear and decide on the rule. And such agreement not being made and filed, I think that they came to a correct conclusion in deciding that they had no jurisdiction over the cause.
A question, however, has been made, whether the case as it now stands in the court, under the rule to show cause why a new trial should not be granted, comes within the provisions contained in the act of the 14th of April 1834, which authorises the president of another district, residing nearest to the place where the cause is pending and to be tried, with one or more of the associate judges of the proper county, to hold a special court for the trial of it; and if it does not, it is concluded that the associate judges ought of necessity to have heard and decided on the rule; otherwise the party is without a remedy. If it be that this act does not embrace this case, it would certainly be a powerful argument to show that the associate judges ought to have heard and decided it. But I am fully satisfied that the act does, in express terms, embrace this case, and that under the authority thereof a special court must be organized for the purpose of deciding it, unless the parties by agreement in writing, filed of record, will dispense with it. The words of the act of 1834 are, “whenever the president judge of any of the said courts shall have been concerned as counsel for either of the parties in any suit depending in any county of his district, &c.” Now the proceedings here were commenced by the husband’s presenting his petition, usually called a libel, to the court, against his wife, praying to be divorced from the bonds of matrimony, for the causes therein set
Without, then, intending to express any opinion, whether we have the power or not to grant a mandamus to a court of common pleas, in any case, for any cause whatever, the motion for it is denied in this case.