Nixon v. Nixon
| Decision Date | 21 March 1938 |
| Docket Number | 97 |
| Citation | 198 A. 154,329 Pa. 256 |
| Parties | Nixon, Appellant, v. Nixon |
| Court | Pennsylvania Supreme Court |
Argued January 7, 1938
Appeal, No. 97, Jan. T., 1938, from decree of Superior Court March T., 1937, No. 14, affirming decree of C.P. Adams Co Aug. T., 1933, No. 187, in case of Thomas Hay Nixon v. Annette Pauline (Finneron) Nixon. Decree of Court of Common Pleas and Superior Court reversed, and decree of divorce reinstated.
Divorce proceeding.
The opinion of the Supreme Court states the facts.
Petition by respondent to vacate decree of divorce granted, opinion by SHEELY, P.J. Libellant appealed to Superior Court which affirmed the decree of the court below. Appeal by libellant to Supreme Court allowed.
Error assigned was action of Superior Court in affirming decree of lower court.
The decree of the Court of Common Pleas and the Superior Court is reversed, and the decree of divorce is reinstated; costs to be paid by appellant.
Richard A. Brown, with him J. Donald Swope, for appellant.
E. V. Bulleit, for appellee.
Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Nixon, a captain in the United States Army, instituted divorce proceedings in Adams County on July 1, 1933. On a return of n.e.i. to the original and alias subpoenas, service was had on respondent by publication. Appellee did not appear at the hearing before the master, nor was she represented by counsel. There is no dispute that the cause for divorce was clearly established. As no legal question is raised on the evidence, because of its character, it will serve no useful purpose to recite it in detail. It is sufficient to say that it shows a course of conduct on the part of appellee which undoubtedly entitled her husband to seek an end to their marital status. The master recommended a decree, which was granted on August 6, 1935.
A short time later, after appellant had remarried, appellee petitioned to have the decree vacated, the principal reason being that appellant had not properly proved the jurisdictional requirement of residence. Other reasons were alleged. The court of common pleas, a different judge presiding, vacated the decree, holding that appellant was not a resident of Adams County when the libel was filed. On appeal the Superior Court affirmed this order, July 15, 1937. But, although it is the custom to mail notices of all decisions of that court to counsel, it was alleged by appellant that in this case postal notice was not sent to appellant's attorney of the action taken; this averment was not specifically denied by appellee. Appellant states that he remained unaware of the decision until its appearance in the Advance Reports. His petition for the allowance of an appeal by this Court was filed shortly after the forty-five day limit for such appeals.
The Act of May 19, 1897, P.L. 67, Section 4, as finally amended on May 11, 1927, P.L. 972, No. 464, Section 1, requires that: An appeal from the Superior Court to the Supreme Court may be instituted by petition to the Supreme Court for allowance. Such a petition lodged in the Supreme Court or with any of the Judges, pursuant to the Act of June 24, 1895, P.L. 212, Section 7[e], constitutes an appeal for the purpose of this statutory limitation. See Platt-Barber Co. v. Groves, 193 Pa. 475. An appellant is barred by the lapse of more than forty-five days between the judgment of the Superior Court and the filing of the petition for an allowance of appeal; otherwise there would be no finality to judicial action. See Platt-Barber Co. v. Groves, supra; Harris v. Mercur (No. 1), 202 Pa. 313; Wise v. Cambridge Springs Borough, 262 Pa. 139; Jordan v. Eisele, 273 Pa. 95; Miller & Sons' Co. v. Mt. Lebanon Township (No. 2), 309 Pa. 221; Marcus v. Cohen, 94 Pa.Super. Ct. 383. But, as this Court has indicated, the legislative purpose is not to foreclose a party who satisfactorily explains his delay. However, the occasion must be extraordinary and must involve fraud or some breakdown in the court's operation through a default of its officers, whereby the party has been injured. There can be no extension of time as a matter of indulgence: Schrenkeisen v. Kishbaugh, 162 Pa. 45, 48. Such excuses as a client's illness (Marcus v. Cohen, supra), or neglect of an attorney (Ward v. Letzkus, 152 Pa. 318; Wise v. Cambridge Springs Borough, supra, at p. 144) are insufficient. Fraud, on the other hand (Zeigler's Petition, 207 Pa. 131; York County v. Thompson, 212 Pa. 561) or its equivalent, "the wrongful or negligent act of a court official" ( Singer v. Del., L. & W.R.R. Co., 254 Pa. 502, 505) may be a proper reason for holding that, as to the injured person, the statutory period does not run and that the wrong may be corrected by means of a petition filed nunc pro tunc within a reasonable time. As was stated in Horn v. Lehigh Valley R.R. Co., 274 Pa. 42, 44, in reference to a statute limiting claims for workmen's compensation: "While the governing sections are mandatory, . . . we have held, where a party has been prevented from doing an act through fraud or circumstances that amount to fraud, the court might extend the time within which to do the act: . . ." And, in Schwartz Bros. v. Adams Express Co., 75 Pa.Super. Ct. 402, 403, it was said: "Where a party has been prevented from appealing by fraud or by the ignorant or negligent act of a court official, it has been held that the court has power to extend the time for taking an appeal." Numerous cases involving appeals from justices of the peace have held that, if the delay in appealing is due to some act or omission of the justices themselves, an appeal may be allowed nunc pro tunc, provided it is prosecuted within a reasonable time. [*] With specific reference to the failure of a court officer to give the proper notice, this Court stated as early as Dawson's Appeal, 15 Pa. 480, 482, in a dictum involving the entry of judgment in vacation: See also Clark v. Wallace, 3 P. & W. 441, 443.
Here the circumstances are such that appellant should not be made to suffer for the prothonotary's neglect to notify him of the order affirming the judgment. Despite the fact there is no statute or written rule of court requiring the prothonotary of the Superior Court to issue notices when orders have been entered, we understand that he has customarily assumed such a duty. This practice, grown to a custom, to notify counsel of the decisions of the Supreme and Superior Courts likewise obtains in the Eastern and Western districts. Neither appellant nor his counsel knew, nor had any reason to believe, there had been a mistake in the prothonotary's office. Under the circumstances they were entitled to expect this notice. The Harrisburg District is composed of twelve counties, and the opinions on cases arising there are handed down at various places at which the court sits, usually cities other than Harrisburg. Counsel lives in Adams County, and it would impose too great a burden to require him to daily inform himself by telephone. Appellant, through his attorney, was lulled into security by this practice, and his failure to receive such notice is sufficient reason for us to hold that appellant should be permitted an appeal. To hold otherwise would work a grave injustice.
But, it must be understood that, if it appears of record that the prothonotary's office sent a postal notice, this will satisfy all requirements of the custom and cannot be disputed. In circumstances such as these before us, an appellant must act with reasonable promptness after notice, or, in the absence of notice, when one should reasonably expect an opinion to be handed down. Here the time required by appellant to act was not unreasonable.
The appeal raises some very interesting questions, as the court below vacated the decree on the ground that it was without jurisdiction to hear the original cause in divorce. Appellee's petition to vacate was not proper under our practice. She prayed that the court "vacate and set aside the decree entered" and that she "be given an opportunity for a hearing for defending against the allegations in the libel set forth." A rule to show cause why the decree should not be vacated and set aside was granted. Testimony was taken by deposition and was accepted "to set aside the decree."
While there have been some definite rules promulgated as to proper practice for attacking decrees and judgments generally, no adequate practice seems to be laid down for decrees in divorce, although the rights of the parties therein rise just as high and are just as vital and important as in those relating to other decrees and judgments. While it has been long established in Pennsylvania that it is unnecessary to bring a separate suit to invalidate a decree of divorce there has been no consistency in the type of attack that has been permitted. Petitions to vacate (Willetts v. Willetts, 96 Pa.Super. Ct. 198), to revoke (Given v. Given, 25 Pa.Super. Ct. 467), and to open decrees (Lichenthaler v. Lichenthaler, 72 Pitts. L.J. 148), have been employed. The prayers of many petitions attacking these decrees have...
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Lawson v. Court of Common Pleas of Montgomery Cnty. Prothonotary Office
...fraud or some breakdown of the court's operation through a default of its officers, whereby the party has been injured." Nixon v. Nixon, 198 A. 154, 157 (Pa. 1938). application to appeal nunc pro tunc must set forth "some legitimate basis" for the delay, that is, "sufficient facts upon whic......