McCalmont v. McCalmont
| Decision Date | 11 August 1927 |
| Docket Number | 10680 |
| Citation | 9 Pa. D. & C. 607 |
| Parties | McCalmont v. McCalmont |
| Court | Pennsylvania Commonwealth Court |
Rule for declaratory judgment.
David R. Griffith, for plaintiff.
William A. Gray, for defendant.
Plaintiff filed a petition averring that he is a citizen of the Commonwealth of Pennsylvania, residing in the City of Philadelphia; that the defendant is also a citizen of the Commonwealth of Pennsylvania, and resides in premises adjoining those occupied by plaintiff; that defendant was formerly the lawful wife of Harold E. Pelton, who procured a final decree in divorce from defendant, and by the terms of the decree she was forbidden, during the lifetime of Harold E. Pelton, to marry the petitioner, William S. McCalmont.
The petition further avers that he was wholly unaware and uninformed of the terms, conditions and inhibitions in the decree, and on June 2, 1922, entered into a marriage at Elkton, Maryland, with Eva Felton McCalmont, although Harold E. Pelton was then and is still living, and that the petitioner thereafter lived and cohabited with Eva Pelton McCalmont in the relation of husband and wife; but on or about April 15, 1925, the petitioner first learned of the prohibitive mandate in the divorce decree, whereupon he separated and withdrew from association with and companionship of Eva Pelton McCalmont and refused to resume marital relations or cohabit with her, and they have not since lived or cohabited in the relation of husband and wife, but finally severed their relations.
The prayer of the petition is that the marriage of William S. McCalmont and Eva McCalmont, because of the decree of May 22, 1922, which prohibited the marriage of petitioner to Eva Pelton McCalmont during the lifetime of Harold E. Pelton, the libellant in the divorce proceedings conducted against her, who is, and was at the time of the marriage, living, but which inhibition was then unknown to petitioner, be declared and decreed wholly and absolutely null and void as to all intents and purposes, by reason of the parties being incapable of and expressly forbidden from being lawfully married to each other during the lifetime of Harold E. Pelton.
A rule was granted to show cause why a declaratory judgment as prayed for in the petition should not be entered.
Eva MeCalmont, the defendant, filed an answer to the petition, in which she denied that William...
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