Appeal, No. 178 | Pa. Super. Ct. | Nov 19, 1900
Opinion by
On February 4, 1899, William D. Smith filed his libel in divorce, averring that his wife Flora “ hath wilfully and maliciously deserted your libellant without any just or reasonable cause,” etc. The wife after having been served with a subpoena, appeared, and filed an answer in which she denied the alleged desertion and alleged that cruel and barbarous treatment on the part of the husband justified her withdrawal from his home; that the libel was not made in sincerity and truth but for the mere purpose of being separated from her, and demanded that the case be tried by a jury upon an issue to be formed for that purpose. At the same time she presented a petition praying for an allowance for the support and maintenance of herself and child during said action, and to employ counsel for her proper defense in the proceeding. On the day fixed by the court for the hearing of the case, the libellant moved for leave to withdraw and discontinue the action. On April 4, 1899, this motion was allowed and an order made that “ no new proceeding be started until costs on this proceeding are paid.” Six months later the husband filed a second libel in which the same alleged desertion of September 17, 1897, was set out, and a second subpoena was awarded and served on the wife, although the costs in the former case had not been paid. To this second libel she appeared “ for the purpose of making a motion to dismiss the action,” and filed an answer reciting the facts of record in the same court in the former case. After a hearing, a rule was granted as to one of the prayers of the petition, the libellant contending that the order of April 4, was a final one, and that the remedy for collecting the unpaid costs was by attachment only; which rule was never disposed of by the court although it challenged the right of the libellant to maintain his action. The .second case was proceeded in without further notice to the wife and resulted in a decree of divorce to the husband. The only evidence, if such it may be called, was in three ex parte affidavits — of the libellant and two others.
The payment of the costs of the first proceeding was not essentially necessary to entitle the libellant to institute the second suit, although it is so generally required that it should be disregarded in exceptional cases only. The practice of the oourts in this respect is wholesome and beneficial, and often,
The authority for granting this divorce is founded on the act of March 13, 1815, 6 Sm. L. 286, sec. 1: The charge being a wilful and malicious desertion and absence from the habitation of the other without reasonable cause for and during the term "and space of two years. The applicant for a divorce on such a ground must establish with sufficient certainty, each and every of these ingredients, as elements necessary to constitute desertion within the meaning of the act. They must all co exist in proof, or no decree can be granted. Courts ought never to sever the marriage contract, but where the application is made in sincerity and truth, for the causes set forth and no other, and fully sustained by the testimony: Angier v. Angier, 63 Pa. 450" court="Pa." date_filed="1870-01-24" href="https://app.midpage.ai/document/angier-v-angier-6233719?utm_source=webapp" opinion_id="6233719">63 Pa. 450. In Middleton v. Middleton, 187 Pa. 612" court="Pa." date_filed="1898-10-17" href="https://app.midpage.ai/document/middleton-v-middleton-6244943?utm_source=webapp" opinion_id="6244943">187 Pa. 612, the duty of the court is clearly declared as follows : “ The ability, learning and conscience of the court must be called into exercise before there can be a dissolution of this contract. While the witnesses may be examined, and their testimony reduced to writing by the examiner, the court must, before decree, be satisfied by its own knowledge of the testimony that the averments of the libel have been proved by full and competent evidence. This court has, ever since the passage of the act of 1815, held it to be incumbent on it, on appeal from a decree of divorce, except when there has been an issue and jury trial, to review the testimony, and adjudge whether it sustained the complaint of the libellant. It has not adopted, in such appeals, the rule generally
The second section of the act of 1815 clearly contemplates that, in order to annul such au important contract, more shall be done than to determine it solely on such ex parte affidavits as are the basis of the decree of the court below. The act authorizes the court, if an issue is not framed, “ to inquire and decide upon the case in the presence of the parties, or if either of them will not attend, then ex parte, by the examination of witnesses on interrogatories, exhibits or other legal proof had before or at the hearing.” There can be no decree pro confesso upon a libel for divorce: Kilborn v. Field, 78 Pa. 194" court="Pa." date_filed="1875-05-10" href="https://app.midpage.ai/document/kilborn-v-field-6234991?utm_source=webapp" opinion_id="6234991">78 Pa. 194. As a substitute for this statutory requirement we have in this case the ex parte affidavit of the libellant, dated J anuary 8, 1900, which discloses that the beginning of the desertion as stated in the libel was admittedly incorrect, and a new date, March, 1898, is specified as the time when the wife deserted him. The two other affidavits, dated J anuary 5 and 10,1900, are indefinite as to when the parties separated. The counsel for libellant prepared the affidavits, and administered the oaths to the affiants. Taken most favorably, they cannot be construed to mean that there had been any desertion “ for and during the term and space of two years,” inasmuch as these affidavits are all made three months before “ the term and space of two years ” would be complete. The court treated the appearance of the wife as a general one, therefore she should have been notified of the discharge of the rule taken at her instance, and of the hearing before the court, and of the taking of testimony in the cause. The decree is reversed and the libellant’s bill is dismissed at his costs.