83 Pa. Super. 85 | Pa. Super. Ct. | 1924
Argued March 3, 1924.
On December 8, 1919, the appellant filed a libel in divorce. The only cause of divorce alleged was that the respondent had been non compos mentis for several years; that she had continued to grow worse; and that she was at the time of filing the libel a hopeless lunatic. Personal service was not had — the respondent then being in Hungary. Service by proclamation was made however by notice in two newspapers published in Lackawanna County. The respondent was not represented by committee or counsel in the proceeding. On December 15, 1920, a decree was entered in favor of the complainant and he was directed to give a bond in the sum of $2,000 "condition sec. leg." The bond was subsequently filed and approved by the court. It is not printed in the record, but was presumably to secure the maintenance of the respondent. On February 28, 1922, Herman Mintz, a son of the parties, presented a petition to the court of common pleas to set aside the decree of divorce on the ground that insanity is not a cause of divorce in Pennsylvania and that the court was therefore without authority to enter the decree. An answer was filed denying the interest of the petitioner in the subject; alleging that the court had no power to open the decree after the time for taking an appeal had elapsed, and asserting the respondent, having accepted a certain gross sum in lieu of alimony after the decree of divorce, and having retained the same, is bound to submit to the whole decree. On March 9, 1923, the court made the rule absolute to set aside and vacate the decree of divorce and it was accordingly vacated, from which order this appeal was taken. The questions for consideration are therefore: first, whether the decree of divorce was a valid exercise of authority; secondly, whether the integrity of the decree could be attacked by the son of the respondent; thirdly, whether the respondent is estopped from contending that the court was without jurisdiction to grant the divorce. That insanity is not a cause of *88
divorce in Pennsylvania is clearly shown in Baughman v. Baughman,
The objection that the son had not standing to apply for a vacation of the decree is without merit. He was one of the nearest kindred of the respondent. The decree was one not only affecting the parties, but the public, and it was important that the court be advised of the fact that there was lack of jurisdiction to enter it. The respondent was not capable of asserting her own right nor cognizant of the nature of the proceeding, and the son could properly act as a next friend in protecting the interest of his incapable mother. Moreover, he had a contingent pecuniary interest as he was liable under the law to be responsible for his mother's maintenance.
It is urged on behalf of the appellant that the application to set aside the decree was not made in time, but it is never too late to attack a judgment for want of jurisdiction which appears on the face of the record: Boyd's App.,
The decree is affirmed at the cost of the appellant.