Lancaster Co. Commonwealth v. Kinzer Maintenance-Divorce-Agreement to continue maintenance. Section I of this act reads as follows: Q. S. of An order for maintenance is no longer ef fective after the parties are divorced although the parties, before the divorce, entered into an agreement that the amount so ordered should be paid until the wife remarried if there should be a divorce. Such agreement can only be enforce by suit before a magistrate or in common pleas. Rule to revoke order for maintenance. Rule absolute. Chas. W. Eaby, for rule John E. Malone and Jos. B. Wissler, suit in the common pleas court of Le- Landis, P. J., December 20, 1924.-On high County against the defendants, and June 24, 1920, on the complaint of May has secured service of the writ upon. Kinzer, this court ordered the defendLeibensperger. This is the correct prac-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 H. Leibensperger is a mere nullity, and this court will not permit the use of its process to enforce it. The motion to strike off the judgment against Allen H. Leibensperger, individually, is sustained, and all process thereunder is set aside. she, in addition, should have the use of the house in which she then resided. On September 11, 1920, a rule was granted to modify this order, but on March 21, 1921, it was, by agreement of counsel for the parties, discharged. Prior to this date, namely, on March 5, 1921, the defendant was divorced from his wife on In the action instituted by the plaintiff the ground of desertion, but this quesagainst the defendants in this court as of tion does not seem to have been then No. 48, October Term, 1924, wherein the raised when the rule was disposed of. defendant Allen H. Leibensperger filed We 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 maintenmurrer. 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-1921, the parties entered into a written tiff's statement within fifteen days after agreement, whereby the defendant agreed the filing of this decree. Now, December 1st, 1924, the prayer of the petitioner is granted, the judgment entered against Allen H. Leibensperger, individually is stricken from the record, and all process issued thereunder is set aside. The defendant to file his affidavit of defense in No. 48, October Term, 1924, as above indicated within fifteen days after the filing of this de cree. that he would pay to the said May F. Kinzer the sum of $60.00 per month as long as she remained his wife, or, in case either party should obtain a divorce, then until her re-marriage, without regard to the minority of her children. It is now claimed on her behalf that, because of this agreement, the order for maintenance is still in effect, or that it did not interfere with the order. This position does not seem to us to be sustainable. It must not be forgotten that the pro Robert S. Spangler, for plaintiff. V. K. Keesey, for defendants. Ross, J., March 9th, 1925.-The defendants named above are officers elected by the qualified voters of York County, Pennsylvania, under the statute laws of the Commonwealth, as "Directors of the Poor and of the House of Employ ceeding under which the order was made was a proceeding in a criminal court. Of course, the parties could, outside of the court, enter into such agreements as they saw fit; but their mutual undertakings were contracts enforceable as any other contract is enforced. After they are no longer husband and wife, neither could retain or invoke the process of the court of quarter sessions to compel the carry-ment for the County of York." The law ing out of their obligations under the contract, nor could they continue the order after the divorce even by agreement. If George W. Kinzer fails to carry out his undertaking, he can be sued, and when judgment is obtained against him before a magistrate or in the common pleas, that judgment can be collected, if he is responsible financially, as other debts are collected. An order for maintenance ought not to be held in terrorem after the situation which caused it has terminated. We are of the opinion that this order should be marked revoked, and this is accordingly done. Rule made absolute and order for maintenance revoked. creating these officers (directors of the poor) was passed by the Legislature, February 6, 1804 (see Smith's Laws, Vol. 4, page 133). It is entitled "An Act to Provide for the Erection of a House for the Employment and Support of the Poor in the County of York.' cally the caption of the Act, inter alia, Section 1 of the Act, which is practideclares: "That a house for the employerected in the County of York in the ment and support of the poor shall be manner and under the conditions hereinafter prescribed and enacted." The second, third and fourth sections of the act indicate the manner in which 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 support of the poor in the County of Willis v. Directors of the Poor of York. Directors of the Poor of York County--Powers-Acts of February 6, 1804, 4 Sm. L. 113, and of April 17, 1866, P. L. 110. Prior to the special Act of March 20th, 1917, P. L. 4, the Directors of the Poor of the House of Employment for the County of York, incorporated by the special act of February 6, 1804, 4 Smith's Law, 113, had The sixth section directs that "the said directors shall, at least once in every year, render an account of all the moneys by them received and expended to the auditors appointed to audit and settle the county accounts, subject to the same penalties, rules and regulations as are by law directed respecting the accounts of the county commissioners.” The seventh section appoints certain persons named in the act to do the things designated in regard to the purchase of land and erection of buildings 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 new alms-ings under their hands and seals to the no power to enter into a contract for the house; and an architect who was employed by said directors on November 2nd, 1914, and who prepared such plans cannot recover from said directors for his services. Affirmative of defense raising questions of law in B. F. Willis, vs. The Directors of the Poor of the House of Em-j ployment for the County of York, No. 15, January Term, 1921. Judgment for defendants. clerk of the court of quarter sessions of the County of York, to be filed in his office. Section VIII relates to the housing and placing in the home the poor of York County. Section IX provides for the housing and maintaining and employment of the poor of said County. 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 employment aforesaid, and of the revenues reimburse them for their expenses, and sum of money as will be sufficient to 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 the approbation of the said court." Section XVIII provides "That the Section XI pertains to the visiting the overseers of the poor, in and by an powers conferred and duties imposed on and care of the inmates of said poor-act to empower the overseers and guardhouse, and Section XII pertains to the ians of the poor of the several townships pay to be received by each of the direc-within this Commonwealth, to recover tors. Section XIII pertains, in case of a vacancy in the office of any of the directors of the poor, to the appointment by the court of quarter sessions of said county of a person to fill said vacancy. certain fines, penalties and forfeitures, and for other purposes, are hereby conferred and imposed on the supervisors of the highways in the said County of York, and that the justices of the peace and sheriff within the said county are hereby required and enjoined, to pay to the said supervisors, to be by them applied to the repair of the highways, the aforesaid fines, penalties and forfeitures, within the time and in the manner prescribed by the said act for the payment thereof in other counties, to the over Section XIV provides "That all monies which shall be remaining in the hands of the overseers of the poor of the borough and several townships of York County, at the time when the first county poor tax shall be assessed, levied and collected, shall be paid over by the said overseers to the supervisors of the high-seers of the poor, and to give notice of ways of their respective townships, to be by them applied towards repairing of the roads therein." Section XV provides "That so soon as the poor of the County of York shall be removed to the house of employment for the said county, the office of overseer of the poor within the said county shall from thenceforth be abolished.. Section XVI provides "That for the services enjoined on the clerk of the court of quarter sessions and court of common pleas of York County, by this act, he shall be entitled to exhibit his accounts to the county commissioners, who shall examine, and, if they allow the same to be just, shall draw on the coun-: the receipt thereof to the said supervisors, within the time and in the manner aforesaid, and that for any neglect or refusal to perform any of the duties enjoined on them by the said act, the said justices of the peace and sheriff in the said county shall be subject to all the fines, penalties and forfeitures, to which the justices of the peace and sheriffs in other counties are by the said act subject and liable." Section XIX provides "That so much. of the laws of this Commonwealth relating to the poor of York County as is by this act altered or supplied, be, and the same is hereby repealed." 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 poor est 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 recommended by the directors of the poor, a grand jury, and the court of quarter sessions of the proper county." Section 2 provides "Where the land connected with any poor house, within the state, shall be deemed insufficient for the comfortable and profitable maintenance and occupation of the poor, or where the land connected therewith shall be found to be useless, unnecessary, or unprofitable, it shall be lawful, in the first-named instance, for the county commissioners, on the recommendation of the directors of the poor, a grand jury, and the court of quarter sessions of the proper county, to purchase such additional quantity of land, not exceeding two hundred acres, and to take a deed, or deeds, therefor, in the name of the county, as shall be thought necessary; and in the second-named instance, on like recommendation, to sell at public sale, after due notice, such part of the land held, as shall be thought unnecessary and unprofitable to be held, and execute a deed, or deeds, therefor to the purchaser." The Supreme Court of Pennsylvania, in the case of Light, et al, vs. Houck, et al., 2 W. N. C., page 5, and the Superior Court, in the case of Taylor vs. The Poor District, 50 Pa. Supr. Ct., 318 have, by analogy, decided that the Act of 1866 just recited should be read as an additional requirement of the said act of 1804. The plaintiff in this case is a profes The copy of this exhibit is at follows: Monday, November 2, 1914. "Special meeting called to order this day at 5 P. M. pursuant to call of president. "Directors Zartman and Schlosser present. "The president announced that the meeting had been called for the purpose of choosing an architect for the board. "The following resolution was offered by Director Schlosser and seconded by director Zartman. "Moved that the following resolution be placed upon the minutes that B. F. Willis, architect, be appointed to render full professional service in accordance with document 99, dated 1908, entitled The American Institute of Architects. Professional Practice of Architects and Schedule of Proper Minimum Charges.' For structure and other designing, required to complete for county charities and other purposes, upon new grounds to be provided for these uses. "Moved by E. A. Schlosser and seconded by E. B. Zartman that the above completed and attached resolution be placed upon the board minutes and a signed copy delivered to the architect. "Date November 2, 1914." "Friday, November 6, 1914. "Regular meeting called to order by the board this day at 9 o'clock. "Directors E. A. Schlosser and Edward Zartman present. "Upon motion of director Schlosser 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. "A. I. A. "American Institute of Architects "Document No. 99." "Paragraph 10 of the above contract reads as follows: "In case of abandonment or suspension of the work, the basis of settlement is to be as follows: For preliminary studies, a fee in accordance with the character and magnitude of the work; for preliminary studies, specifications and general working drawings (exclusive of details), 3/5 of the fee for complete services.' The 11th paragraph states "That the plaintiff was immediately notified of his appointment as architect for the said defendant and immediately thereafter accepted said employment and notified the defendant of said acceptance, in accordance with the terms of the resolution authorizing his appointment and above referred to." "You are therefore advised that such recommendations as the commissioners of public charities may have to make concerning the condution of the York County almshouse, should be addressed to the directors of the poor of that county." With due and proper regard for the judgment of the then Attorney General Bell, we are inclined to believe that he had overlooked the cases above cited, of Light, et al. vs. Houck, et al., 5 W. N. C., 5, and Taylor 1: The District, 50 Pa. Supr. Ct., 318. The matters which we have now to decide are questions of law raised by an affidavit of defence, as provided by the 20th section of the Practice Act. of 1915, by the present directors of the poor of York County. They read as follows: "The Directors of the Poor and of the House of Employment for the County 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 various state officials to the directors of the poor, to build a new almshouse, and their practical conclusion to do so. ments of fact, says, that the plaintiff's statement is not sufficient in law for the following reasons, to wit: "I. The contract upon which the suit is brought is illegal and ultra vires. brought. "3. The statement does not set forth any legal cause of action. During the stress so brought upon the 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-is house and Attorney General Bell was consulted, who, in a letter dated March 27, 1914, addressed to Bromley Wharton, Esq., general agent and secretary Board of Public Charities, Philadelphia, practically advised the Board of Public Charities in language as follows: "It results from what has been said that the Act of 1804 is in full force and determines the question of the responsibility for the condition of the York County almshouse. "Under the provisions of that Act, as above quoted, it cannot be doubted that the duty of providing for the mainten "Wherefore the defendant prays for judgment in its favor upon the questions of law hereby raised.” After reading the several acts which constructed the poor districts of Carbon and Luzerne Counties, analyzed by the Superior Court, and the act creating the poor district and the duties of the directors of the poor in the district of Lebanon County, as analyzed by the Supreme Court in Light vs. Houck, we are of the opinion that the affidavit of defence must prevail in the case at bar. |