Stewart v. Stewart

• Decision Date: 15 July 1937
• Docket Number: 212-1937
• Citation: 193 A. 860,127 Pa.Super. 567
• Parties: Stewart v. Stewart, Appellant, et al
• Court: Pennsylvania Superior Court

193 A. 860

127 Pa.Super. 567

Stewart v. Stewart, Appellant, et al

No. 212-1937

Superior Court of Pennsylvania

July 15, 1937

Argued May 3, 1937

Appeal from order of C. P. Allegheny Co., April T., 1936, No. 2182 in case of Bertie Jeanette Stewart v. Henry S. A. Stewart Jr., and Fidelity Trust Company, garnishee.

Foreign attachment in assumpsit.

The facts are stated in the opinion of the Superior Court.

Rule obtained by defendant to show cause why the writ should not be quashed or the attachment dissolved discharged, opinion by Rowand, J. Defendant appealed.

Error assigned was discharge of rule.

Order affirmed.

Thomas N. Griggs, for appellant.

H. F Stambaugh, with him Ralph H. Demmler, Watson & Freeman and Bryant & Pittman, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.

OPINION

Stadtfeld, J.

On March 7th, 1936, plaintiff issued a writ of foreign attachment in assumpsit, and summoned Fidelity Trust Company as garnishee. The said writ was served on the garnishee on March 7th, 1936, and returned nihil habet as to the defendant. The garnishee and the defendant, by their respective counsel, both entered appearances de bene esse on March 17th, 1936.

On May 21st, 1936, the plaintiff filed her affidavit of cause of action and statement of claim wherein it appears that the plaintiff is a resident of the State of Florida, and is the wife of the defendant and that the defendant is a non-resident of Pennsylvania. The plaintiff's claim is based upon a decree of Circuit Court of the Eleventh Judicial Circuit of the State of Florida, denying a divorce to the defendant in the attachment proceeding and awarding alimony, in the amount of $ 325 per month, and the sum of $ 4,750 to her for the use and benefit of her solicitors. Plaintiff claims the sum of $ 775 with interest.

On May 29th, 1936, upon petition of the garnishee, a rule was granted upon plaintiff to show cause why the writ of foreign attachment should not be quashed, or the attachment dissolved. As appears by said petition, the garnishee asserted that the plaintiff had improperly joined causes of action; that the affidavit of cause of action and statement of claim was insufficient in that it failed to disclose that the decree of the Florida court was a final decree, entitled to full faith and credit; and that the greater part of defendant's property in the hands of the garnishee was exempt from his attachment, being the defendant's interest in a spendthrift trust.

On June 29th, 1936, the court, in an opinion by Rowand, J., refused the petition of the garnishee.

On September 23rd, 1936, upon petition of the defendant, a rule was granted upon the plaintiff to show cause why the writ of foreign attachment should not be quashed or the attachment dissolved, or at least dissolved with respect to the defendant's interest in the spendthrift trust. The averments of the defendant's petition were substantially the same as those in the petition of the garnishee.

On October 17th, 1936, the court discharged the said rule for the reasons set forth in the opinion of the court dated June 29th, 1936.

From the order of the court dismissing the defendant's petition, the defendant appealed to this court under the provisions of the Act of Assembly of April 26, 1917, P. L. 102 (Title 12 P. S. A. Section 1108-1110 inclusive).

The entire record of the proceeding at which the Florida decree of January 3, 1936, was entered is attached as Exhibit "A" to plaintiff's affidavit of cause of action and statement of claim. The tenth and eleventh paragraphs of the decree, which paragraphs form the principal basis for the cause of action in this case, read as follows: "Tenth: That the plaintiff and cross-defendant, Henry S. A. Stewart, Jr., do pay the defendant and cross-complainant, Bertie Gennett Parkes Stewart, $ 325 on January 19th, 1936 and $ 325 on the 19th day of each month thereafter as permanent alimony for maintenance and support, the said payments to be made to the clerk of this court for the use and benefit of the defendant and cross-complainant, Bertie Gennett Parkes Stewart.

"Eleventh: That the plaintiff and cross-defendant, Henry S. A. Stewart, Jr., do pay to the defendant and cross-complainant, Bertie Gennett Parkes Stewart, for the use and benefit of her solicitors Bryant & Pittman, the sum of $ 4,750 as final counsel fees, said sum being in addition to the temporary fees heretofore allowed by this court; that said money be paid by the plaintiff and cross-defendant, Henry S. A. Stewart, Jr., to the clerk of this court for the defendant and cross-complainant, Bertie Gennett Parkes Stewart, for the use and benefit of her solicitors, Bryant & Pittman, which sum shall be payable as follows: $ 250 per month, payable at the same time and in a like manner as the alimony payments."

The record as attached to the statement of claim also contains a judgment for unpaid alimony through March 24, 1936, which judgment, after reciting the decree, reads as follows: "It is ordered and adjudged that the defendant and cross-complainant, Bertie Gennett Parkes Stewart, do have and recover of Henry S. A. Stewart, Jr., the plaintiff and cross-defendant, the sum of one thousand three hundred and fifty dollars, lawful money of the United States of America for which let execution issue."

The arrearages due at the time the attachment was entered, according to plaintiff's affidavit of cause of action and statement of claim amounted to $ 775.

Appellant in support of his motion to quash or dissolve the attachment specifies two grounds: (a) The plaintiff has improperly joined causes of action in this suit, brought in her own name; and, (b) The affidavit of cause of action and statement of claim are insufficient.

In the petition filed by defendant in the lower court the ground for quashing are as follows: (1) -- An alleged improper joinder of a cause of action in plaintiff's own right and one for the use and benefit of her solicitors. (2) -- The failure to aver that the Florida decree is final and that the same has not been appealed from, or that the time for filing the appeal has elapsed. (3) -- That the record shows that the Florida court reserved jurisdiction for the purpose of settling future questions involving alimony and suit moneys and therefore that the decree is not final and not entitled to full faith and credit. (4) -- The record fails to set forth that the Florida court is without power to alter, vary or modify the decree. (5) -- Failure to aver that the Florida court has liquidated or reduced to judgment any sums claimed under its decree.

We do not believe that there is any misjoinder of actions. Both the original decree covering alimony and counsel fees, as also the judgment entered by the court on March 24, 1936, covering judgment for arrearages, order and direct that the respective sums "be paid by the said plaintiff and cross-defendant, Henry S. A. Stewart, Jr., to the defendant and cross-complainant, Bertie Gennet Parkes Stewart."

The court in Florida has followed the practice of the Pennsylvania courts, in decreeing a certain sum to the wife for alimony and a certain other sum for counsel fees. Both sums are payable to the wife. There is no joinder of causes of action of two separate plaintiffs. Under our practice, the wife and not the attorney is the proper party to proceed for the failure to pay counsel fees. The right of a wife to require her husband to pay her counsel fees is no more a representative right than her right to compel her husband to give her money to pay her living expenses.

As to the alleged failure to aver that the decree of the Florida court, dated January 3, 1936, is a final decree which has not been appealed from, or to aver that the time for filing an appeal has elapsed: -- The decree in question, as shown by the exemplification of the same attached to and made part of the statement of claim, is, on its face, a final decree, and it is so stated. It is so referred to by the defendant, Henry S. A. Stewart, Jr., in his petition filed for a reduction of alimony. On March 24, 1936, the court in entering the order denying Henry S. A. Stewart, Jr.'s petition for reduction, refers to the "Final Decree heretofore entered herein dated January 3, 1936."

The certificate of the Clerk of Courts of Dade County, Florida, properly verified under the Act of Congress, certifies that the record attached is a correct and complete copy of all the orders entered by the court, and lists among those orders "final decree, filed January 3, 1936" and the judgment filed March 24, 1936. It also lists the pleadings on file, none of which discloses the existence of an appeal.

But even if an appeal had been taken from the original decree, unless there also had been a stay of proceedings, it would not bar an action thereon in another state pending the appeal. See Merchants' Insurance Co. v. De Wolf et al., 33 Pa. 45; German Trust Co. of Davenport v. Plotke, 274 Pa. 483, 118 A. 508. In the case last cited an action was brought on a foreign judgment. The affidavit of defense alleged an appeal had been taken from the judgment but did not allege a modification. The Supreme Court affirmed an order making absolute a rule for judgment for want of a sufficient affidavit of defense. Quoting from the opinion of the lower court in said case: "The affidavit alleges that an appeal was taken to the judgment of the New Jersey court; but there is no averment that the judgment was modified or reversed, that the appeal acted to stay proceedings or that it affected the validity of the judgment, which is not subject to attack in this jurisdiction.

"The judgment entered in New Jersey was rendered by a court of competent...