Walentynowicz v. Walentynowicz

89 Pa. Super. 182 | Pa. Super. Ct. | 1925

Argued March 2, 1925. This is an appeal from a decree of divorce, a. v. m. The record is fatally defective, in a respect, we assume, that was not called to the attention of the learned court below.

In Kilborn v. Field, 78 Pa. 194, the court said: "The libel must be supported by an affidavit of the libellant, that `the complaint is not made out of levity or collusion between the husband and wife, and for the mere purpose of being freed and separated from each other, but in sincerity and truth for the causes mentioned in the petition or libel': [section 2, Act of March 13, 1815, 6 Sm. L. 287]. Without such an affidavit the libel is fatally defective, and the decree for divorce under it will be reversed: Hoffman v. Hoffman, 6 Casey 419."

In this case there is no evidence that the required oath or affirmation was made. Inspection of the record discloses that libellant appears to have signed a form of oath but there is no jurat, or other evidence of any kind, certifying that he swore to the truth of what is stated. The statute must be complied with: Hoffman v. Hoffman, supra; Kilborn v. Field, supra.

The decree is reversed and the record remitted with instructions to dismiss the libel.