Duncan v. Duncan

• Decision Date: 05 January 1920
• Docket Number: 67
• Parties: Duncan v. Duncan, Appellant (No. 1)
• Court: Pennsylvania Supreme Court

109 A. 220

265 Pa. 464

Duncan v. Duncan, Appellant (No. 1)

No. 67

Supreme Court of Pennsylvania

January 5, 1920

Submitted September 29, 1919.

Appeal, No. 67, Oct. T., 1919, by defendant, from decree of C.P. Cambria Co., June T., 1918, No. 1, on bill in equity in case of Mary E. Duncan v. Charles E. Duncan. Affirmed.

Bill in equity by wife against husband for support under the Act of May 23, 1907, P.L. 227, and its supplements of April 27 1909, P.L. 182, and July 21, 1913, P.L. 867. Before BAILEY P.J., specially presiding.

The court entered a decree against defendant requiring him to pay $3,000 in cash and $2,000 annually. Defendant appealed.

Error assigned, among others, was the decree of the court.

The decree is affirmed and the appeal dismissed at the costs of appellant.

Forest & Percy Allen Rose, for appellant. -- The courts of this Commonwealth are not constituted to adjust differences which may arise between a husband and wife who may have been at some time casual sojourners within its jurisdiction. The fact that the husband has property within the jurisdiction is a mere incident and has no bearing upon the question Fulford v. Fulford, 38 Pa. C.C.R. 142.

The defendant is entitled to raise the question of the lack of the court's jurisdiction at this time: Williams v. Fowler, 201 Pa. 336.

The plaintiff did not abandon her original domicile in the City of Buffalo, New York, for the purpose of taking up a permanent domicile in Cambria County, Pennsylvania, but the fact is that at the time of the hearing she was remaining there until the case was disposed of. Thereafter she had no fixed determination as to her domicile, and in the absence thereof her sojourn in that county does not establish the domicile which is required by the act in question which is necessary to afford its courts the jurisdiction contended for by the plaintiff: Hunnings v. Hunnings, 55 Pa.Super. 261; Roth v. Roth, 27 Pa. Dist. Rep. 909; Hindman's App., 85 Pa. 466; Price v. Price, 156 Pa. 617; Halpine v. Halpine, 52 Pa.Super. 80.

In the absence of a replication, the case having been set down for trial on bill and answer, the defendant was entitled to the benefit of the rule that where a cause in equity is thus heard, all material or relevant averments of fact contained in and proper for the answer must be accepted as true, whether responsive to the bill or constituting independent matters of defense: Horton's App., 13 Pa. 67; Russell's App., 34 Pa. 258.

J. Earl Ogle, Jr., for appellee.

Before BROWN, C.J., STEWART, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE SIMPSON:

Plaintiff filed a bill in equity against her husband, averring he had deserted her without reasonable cause, and though being of sufficient ability had neglected or refused to provide suitable maintenance for her; and prayed, in accordance with the provisions of the Acts of May 23, 1907, P.L. 227; April 27, 1909, P.L. 182, and July 21, 1913, P.L. 867, the court to direct a seizure and sale or mortgage of sufficient of his estate to provide for her maintenance. The defendant's answer denied he had deserted her without reasonable cause, and averred their separation was due to her cruel and barbarous treatment of him, which had rendered his existence intolerable and life burdensome, and that he had obtained a valid divorce from her. Without the filing of a replication, and without the attention of the court being called thereto, the case was tried in the usual manner, evidence was taken, requests for findings of fact and conclusions of law were presented by each party, and the case was fully argued upon the evidence produced. Subsequently, under objection and exception, plaintiff was permitted to file a replication nunc pro tunc as of a date preceding the time of trial; and about a month and a half later defendant made a motion to reopen the case which was refused, and an exception granted. The adjudication was in favor of plaintiff for part of the relief sought; both sides excepted, the exceptions were dismissed, a final decree entered, and defendant now appeals.

The thirty-three assignments of error may be considered under six heads: (1st.) Was defendant's desertion without justification or excuse? (2d.) Was plaintiff a resident of Cambria County, Pennsylvania, at the time of the desertion and subsequently? (3d.) Was defendant possessed of property, within the jurisdiction of the court? (4th.) Were the parties husband and wife? (5th.) Were the costs properly charged upon the funds in the hands of Gertrude H. Duncan, defendant's sister? (6th.) Did the court below err in allowing the replication to be filed nunc pro tunc, and in refusing to reopen the case? The first two of these questions will be considered together.

Upon abundant evidence the court below found the following facts: Plaintiff and defendant were married in Greensburg in this State, and in the early part of 1917 were living together in Buffalo, New York, where (as he avers in his ninth request for a finding of fact) she "was deserted by her husband . . . on the 5th day of February, A.D. 1917," he removing to Johnstown, Cambria County, in this State and taking up his residence with his parents. He wrote her from Johnstown, telling her he had taken up his residence there, asking her to come and live with him at a home he would provide, and to bring with her all their personal belongings. In compliance with his request she came, and, he not meeting her at the railroad station, she went to his parents' house in Johnstown, but was unable to remain because the family objected. Defendant then took her to a hotel in that city, and paid her board, but within a short time he again deserted her without cause and went West, writing her "I hope that I will never see or hear from or of, you, or any one connected with you again." Thereafter he sent her small sums of money for a time, but never returned to her or asked her to come to him. Continuously since then she has lived in Cambria County. Even if we thought the court below might have found the facts otherwise, which we do not, as there was abundant evidence to support the findings, they will not be disturbed on appeal: First National Bank of Pittsburgh v. McKinley Coal Co., 210 Pa. 76.

Was defendant possessed of property within the jurisdiction of the court? Admittedly he was possessed of the household belongings brought from the Buffalo home, and even if we assume despite his general appearance by counsel, that the existence of property subject to seizure was essential to sustain the jurisdiction of the court below, those household belongings within the...