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Section I of this act reads as follows: Q. S. of
Lancaster Co. "That in all suits now pending or here
Commonwealth v. Kinzer after brought in any court of record in this commonwealth, against joint and several obligors, copartners, promissors or the endorsers of promissory notes, in
1/aintenance-Dizorce-greement to which the writ of process has not been or
contine maintenance may not be served on all of the defendants, and judgment may be obtained An order for maintenance is no longer efagainst those served with process, such fective after the parties are divorced al
though the parties, before the divorce, enwrit, process or judgment shall not be a
tered into an agreement that the amount so bar to recovery in another suit against ordered should be paid until the wife re
Such the defendant or defendants not served married if there should be a divorce.
agrement can only be enforce by suit before with process.” Therefore, if the plaintiff a magistrate or in common pleas. desires to follow the personal assets of
Rule to revoke order for maintenance. Allen H. Leibensperger he can have his
Rule absolute. remedy by the institution of another action. Indeed while these proceedings Chas. Il'. Eanv, for rule above complained of were still pencing
John E. Valone and Jos. B. Il'issler, the plaintiff has elected thus to proceed. The plaintiff has already instituted its
listrict attorney, contra. suit in the common pleas court of Le- Landis, P. J., December 20, 1924.--On high County against the defendants, and 1 June 24, 1920, on the complaint of May has secured service of the writ upon i Kinzer, this court ordered the defendLeibensperger. This is the correct prac-i ant to pay to the complainant, his wife, tice. We will therefore conclude that the sum of $60.00 per month, and that the entry of the judgment against Allen she, in addition, should have the use of H. Leibensperger is a mere nullity, and the house in which she then resided. On this court will not permit the use of its | September u, 1020, a rule was granted process to enforce it.
The motion to to modify this order, but on March 21, strike off the judgment against Allen 11. 1921, it was, by agreement of counsel for Leibensperger, individually, is sustained, the parties, discharged. Prior to this and all process thereunder is set aside.
date, namely, on March 5, 1021, the de
fenilant was divorced from his wife on In the action instituted by the plaintiff the ground of diesertion, but this quesagainst the defendants in this court as of tion does not seem to have been then No. 48, October Term, 19244, wherein the raised when the rule was disposed of. defendant Allen H. Leibensperger filed lle think that, unless some good legal his affidavit of defense, raising questions reason is shown to the contrary, when of law, counsel for the defendant, at the the parties ceased to be husband and argument asks leave to withdraw his de- wife, the order of this court for maintenmurer. This may be done. The de- ance fell and was no longer effective. fendant will file his affidavit of defense It is admitted that, on February 10, to the matters of fact alleged in plain-1021, the parties entered into a written tiff's statement within fifteen days after agreement, whereby the defendant agreed the filing of this decree.
that he would pay to the said May F.
Kinzer the sum of $60.00 per month as Now, December ist, 1924, the praver long as she remained his wife, or, in case of the petitioner is granted, the judg- either party should obtain a divorce, then ment entered against Allen H. Leiben- until her re-marriage, without regard to sperger, individually is stricken from the the minority of her children. It is now record, and all process issued thereunder claimed on her behalf that, because of is set aside. The defendant to file his this agreement, the order for maintenaffidavit of defense in No. 48, October ance is still in effect, or that it did not Term, 1924, as above indicated within interfere with the order. This position fifteen days after the filing of this de- does not seem to us to be sustainable.
It must not be forgotten that the pro
ceeding under which the order was made Robert S. Spangler, for plaintiff.
V.K. Keesey, for defendants. court, enter into such agreements as they Ross, J., March 9th, 1925.- The desaw fit; but their mutual undertakings fendants named above are officer's electwere contracts enforceable as any other ed by the qualified voters of York Councontract is enforced. After they are noty, Pennsylvania, under the statute laws longer husband and wife, neither could of the Commonwealth, as "Directors of retain or invoke the process of the court the Poor and of the House of Employof quarter sessions to compel the carry-ment for the County of York." The law ing out of their obligations under the creating these officers (directors of the contract, nor could they continue the or- poor) was passed by the Legislature, der after the divorce even by agreement. February 6, 1804 (see Smith's Laws, If George W. Kinzer fails to carry out | Vol. 4, page 133); It is entitled “An his undertaking, he can be sued, and act to Provide for the Erection of a when judgment is obtained against him House for the Employment and Support before a magistrate or in the common of the Poor in the County of York.” pleas, that judgment can be collected, if
Section 1 of the Act, which is practihe is responsible financially, as other «lebts are collected. An order for main-cally the caption of the Act, inter alia,
"a tenance ought not to be held in terrorem after the situation which caused it has ment and support of the poor shall be
erected in the County of York in the terminated. We are of the opinion that this order manner and under the conditions herein
after prescribed and enacted." should be marked revoked, and this is accordingly done.
The second, third and fourth sections Rule made absolute and order for of the act indicate the manner in which maintenance revoked.
the directors shall be elected, and the fourth and fifth sections indicate most of the duties of the directors in charge
of the house for the employment and C. P. of
support of the poor in the County of Willis v. Directors of the Poor of York. York Co.
The sixth section directs that "the said directors shail, at least once in every year, render an account of all the mon
ey's by them received and expended to Directors of the Poor of York Coun the auditors appointed to audit and setty--- Powers, Acts of February 6, 1804, tle the county accounts, subject to the
same penalties, rules and regulations as + Sm. L. 113, and of April 17, 1866, P. are by law directed respecting the ac
counts of the county commissioners.” L. 110.
The seventh section appoints certain Prior to the special Act of March 20th, persons named in the act to do the 1917, P. L. 4, the Directors of the Poor of the House of Employment for the County of things designated in regard to the purYork, incorporated by the special act of chase of land and erection of buildings February 6, 1804, 4. Smith's Law, 113, had for the comfort of the poor, and diemployment and payment of an architect for rects that they shall certify their proceedthe preparation of plans for a house; and an architect who was employed ings under their hands and seals to the by said directors on November 2nd, 1914, clerk of the court of quarter sessions and who prepared such plans cannot recover | of the County of York, to be filed in his from said directors for his services.
office. Affirmative of defense raising ques- Section VIII relates to the housing tions of law in B. F. Willis, vs. The Di- i and placing in the home the poor of rectors of the Poor of the House of Em-1 York County. ployment for the County of York, No. Section IX provides for the housing 15, January Term, 1921. Judgment for and maintaining and employment of the defendants.
poor of said County.
no power to enter into a contract for the
Section X reads as follows: "And be ty treasurer for the amount thereof as it further enacted by the authority afore- is usual in case of other accounts.” said, 'That the said directors, or a major- Section XVII provides “That the ity of them, shall be a quorum in all commissioners of the County of York cases to do business, and shall have full are hereby authorized and empowered, power to make and ordain all such ordi- to pay to the persons who are appointed nances, rules and regulations, as they by this act to fix the places where the shall think proper, convenient and nec buildings for the accommodation of the essary for the direction, government and poor in said county shall be erected, such support of the poor and house of em
sum of money as will be sufficient to ployment aforesaid, and of the revenues reimburse them for their expenses, and thereunto belonging, and of all such per- also to pay to each of the directors of sons as shall come under their care or the poor of York County, such sum of cognizance: Provided, The same be not money as, together with the annual sum repugnant to this law, or any other of allowed to them by this act, will be, in the laws of this state, or of the United the opinion of the commissioners, a reaStates: And provided also, That the sonable compensation for each of their same shall not have any force or effect services during the time they are carryuntil they shall have been submitted to ing on and erecting the building aforethe court of common pleas for the said.” County of York, and shall have received
Section XVIII provides "That the the approbation of the said court."
powers conferred and duties imposed on Section XI pertains to the visiting the overseers of the poor, in and by an and care of the inmates of said poor- act to empower the overseers and guardhouse, and Section XII pertains to theians of the poor of the several townships pay to be received by each of the direc-within this Commonwealth, to recover tors.
certain fines, penalties and forfeitures, Section XIII pertains, in case of aand for other purposes, are hereby convacancy in the office of any of the di- ferred and imposed on the supervisors rectors of the poor, to the appointment of the highways in the said County of by the court of quarter sessions of said | York, and that the justices of the peace county of a person to fill said vacancy. and sheriff within the said county are
Section XIV provides “That all mon- hereby required and enjoined, to pay to ies which shall be remaining in the the said supervisors, to be by them aphands of the overseers of the poor of the plied to the repair of the highways, the borough and several townships of York aforesaid fines, penalties and forfeitures, County, at the time when the first coun- within the time and in the manner prety poor tax shall be assessed, levied and scribed by the said act for the payment collected, shall be paid over by the said thereof in other counties, to the overoverseers to the supervisors of the high- seers of the poor, and to give notice of ways of their respective townships, to be the receipt thereof to the said supervisby them applied towards repairing of the ors, within the time and in the manner roads therein."
aforesaid, and that for any neglect or Section XV provides “That so soon refusal to perform any of the duties enas the poor of the County of York shall joined on them by the said act, the said be removed to the house of employment justices of the peace and sheriff in the for the said county, the office of over- said county shall be subject to all the seer of the poor within the said county fines, penalties and forfeitures, to which shall from thenceforth be abolished. ; the justices of the peace and sheriffs in
Section XVI provides “That for the other counties are by the said act subservices enjoined on the clerk of the ject and liable.” court of quarter sessions and court of Section XIX provides “That so much common pleas of York County, by this of the laws of this Commonwealth relatact, he shall be entitled to exhibit his ing to the poor of York County as is by accounts to the county commissioners, this act altered or supplied, be, and the who shall examine, and, if they allow the same is hereby repealed.” same to be just, shall draw on the coun- : The above recited provisions of the
Act of 1804 have not been radically sional architect, and sues the defendant changed by any subsequent act, until the for the recovery of $14,250, with interAct of 1866, P. L. 110, “relating to poorest which he alleges is due thereon from houses and lands,” provided as follows: October 1, 1915. It appears by the al"That in all cases where a poor house, legations contained in his statement filed or houses, have been, or hereafter shall (see paragraph 10), “That on Novembe, erected in any county, or counties, ber 2, 1914, a special meeting of the under any law of this Commonwealth, Board of Poor Directors of the House and the said buildings are found insuf- of Employment of the County of York ficient for the purpose of comfortably was called and at said meeting the said sheltering and maintaining the poor, directors unanimously adopted a resolusick, or insane of the proper county, it|tion electing the plaintiff architect for shall be lawful for the county commis- the said directors of the poor for the sioners to erect new, or additional, build-purpose of preparing architectural plans ings for such purposes, or for hospitals, and drawings for the erection of new to prevent the spread of infectious dis-almshouse buildings, on a new site. A eases among those sent to such institu- copy of said resolution is attached to, tions : Provided, that before erecting any made a part of the statement and marksuch new, or additional, buildings, the ed exhibit E'.” construction thereof shall be recom
The copy of this exhibit is at follows: mended by the directors of the poor, a Monday, November 2, 1914. grand jury, and the court of quarter "Special meeting called to order this sessions of the proper county.”
day at 5 P. M. pursuant to call of presSection 2 provides “Where the land ident. connected with any poor house, within "Directors Zartinan and Schlosser
“ the state, shall be deemed insufficient for
present. the comfortable and profitable mainten
"The president announced that the ance and occupation of the poor, or meeting had been called for the purpose where the land connected therewith shall of choosing an architect for the board. be found to be useless, unnecessary, or "The following resolution was offered unprofitable, it shall be lawful, in the by Director Schlosser and seconded by first-named instance, for the county com-director Zartman. missioners, on the recommendation of the directors of the poor, a grand jury, be placed upon the minutes that B. F.
“Moved that the following resolution and the court of quarter sessions of the
Willis, architect, be appointed to render proper county, to purchase such addi- full professional service in accordance tional quantity of land, not exceeding with document 99, dated 1908, entitled two hundred acres, and to take a deed, "The American Institute of Architects, or deeds, therefor, in the name of the Professional Practice of Architects and county, as shali be thought necessary; Schedule of Proper Minimum Charges.' and in the second-named instance, on For structure and other designing, relike recommendation, to sell at public sale, after due notice, such part of the quired to complete for county charities land held, as shall be thought unneces
and other purposes, upon new grounds sary and unprofitable to be held, and to be provided for these uses. execute a deed, or deeds, therefor to the “Moved by E. A. Schlosser and sec
onded by E. B. Zartman that the above purchaser.”
completed and attached resolution be The Supreme Court of Pennsylvania, placed upon the board minutes and a in the case of Light, et al, vs. Houck, Signed copy delivered to the architect. et al., 2 W. N. C., page 5, and the Su- "Date November 2, 1914." perior Court, in the case of Tavlor vs.
"Friday, November 6, 1914. The Poor District, 50 Pa. Supr. Ct., 318
"Regular meeting called to order by have, by analogy, decided that the Act the board this day at 9 o'clock. of 1866 just recited should be read as
"Directors E. A. Schlosser and Edan additional requirement of the said
ward Zartman present. act of 1804.
"Upon motion of director Schlosser The plaintiff in this case is a profess' and seconded by Edward Zartman that at the moment of the passing of the ance of the poor in York County rests above. Posted written movement. Pass- upon the directors of the poor, nor can ing the typewritten resolution it was it be doubted that the duty to erect an posted in the book by George S. Love adeqquate almshouse is necessarily by direction of board. The full con- implied from the obligation to maintain tract document referred to posted over the poor. on the other side of this page.
"You are therefore advised that such **Α. Ι. Α.
recommendations as the commissioners “American Institute of Architects of public charities may have to make
“Document No. 99." concerning the condution of the York "Paragraph 10 of the above contract County alushouse, should be addressed reads as follows:
to the directors of the poor of that “In case of abandonment or suspen-county.” sion of the work, the basis of settle- With due and proper regard for the ment is to be as follows: For prelimin-judgment of the then Attorney General ary studies, a fee in accordance with the Bell, we are inclined to believe that he character and magnitude of the work; had overlooked the cases above cited, of for preliminary studies, specifications Light, et al. vs. Houck, et al., 5 W. X. and general working drawings (exclu- C., 5, and Taylor 1: The District, 50 Pa. sive of details.), 3/5 of the fee for com- Supr. Ct., 318. plete services.
The matters which we have now to The uth paragraph states “That the decide are questions of law raised by plaintiff was immediately notified of his an affidavit of defence, as provided by appointment as architect for the said de- the 20th section of the Practice Act. of fendant and immediately thereafter ac- 1915, by the present directors of the cepted said employment and notified the poor of York County. They read as defendant of said acceptance, in accord- follows: ance with the terms of the resolution
"The Directors of the Poor and of authorizing his appointment and above the House of Employment for the Counreferred to."
ty of York, the above named defendant, The plaintiff's statement is somewhat without answering the averments of fact given up to a recitation of the reported in the statement of claim, and without dilapidated condition of the almshouse admitting the truth of any such averof York County, and the direction of ments of fact, says, that the plaintiff's various state officials to the directors of statement is not sufficient in law for the the poor, to build a new almshouse, and following reasons, to wit: their practical conclusion to do so. “1. The contract upon which the
During the stress so brought upon the suit is brought is illegal and ultra vires. directors of the poor to obtain new land “2. The directors of the defendant and to build a new house, there seems to poor district had no power or authority have been some doubt as to the author- to make the contract upon which suit ity of said directors to build an alms- j is brought. house and Attorney General Bell was “3. The statement does not set forth consulted, who, in a letter dated March any legal cause of action. 27. 1914, addressed to Bromley Whar- Wherefore the defendant prays for ton, Esq., general agent and secretary judgment in its favor upon the questions Board of Public Charities, Philadelphia, of law hereby raised.” practically advised the Board of Public After reading the several acts which Charities in language as follows: constructed the poor districts of Carbon
"It results from what has been said and Luzerne Counties, analyzed by the that the Act of 1804 is in full force and Superior Court, and the act creating the determines the question of the responsi- poor district and the duties of the dibility for the condition of the York rectors of the poor in the district of LeCounty almshouse.
banon County, as analyzed by the Su"C'nder the provisions of that Act, as preme Court in Light vs. Houck, we are above quoted, it cannot be doubted that of the opinion that the affidavit of dethe duty of providing for the mainten-, fence must prevail in the case at bar.