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ter sessions made an order on him for the

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writing, a copy of the same should be set tioned case, to show cause why the order forth in the statement.

of your honorable court should not be reThe plaintiff's statement is stricken off voked and set aside. with leave to file an amended statement

"(Signed) David Viller." in accordance with this opinion, within The following worded order fifteen days hereafter.

made:

“Filed April 30, 1923, and rule to Q. S. of

York Co. show cause why order of allowance

should not be revoked, granted, returnCommonwealth v. Miller able Monday, May 14. 1923, atten

o'clock, A.M.

"By the court (Wanner). Divorce Jurisdiction of court of

“Purd R. Smith, clerk." state in which parties had no residence

An answer was duly filed by the de

fendant, which caused the following Maintenance

finding of facts from the records of this

court : Where a husband, after the court of quar

On September 26, 1921, there was support of his wife, went to the State of Ne

an order made by the court of quarter vada and there procured a decree of divorce, without his wife having appeared to the pro-sessions, No. 4. September term, 1921, ceeding or ever having been in Nevada, such requiring David Miller, the petitioner, to decree of divorce was not a ground for the revocation of the order to maintenance.

pay for the support and maintenance of

his wife, Lucy S. Miller, until the furPetition of David Miller to the Court ther order of the court. of Quarter Sessions of York Co., la..

On November 21, 1921, the said praying for a revocation of the order of

David Miller presented his petition maintenance made by said court, in No. 4, September Term. 1921. l'etition re praying the court to revoke the said or

, fused.

der made upon him to pay for the sup

port of his said wife six dollars per week. Robert C. Fluhrer, for petition.

3. Although depositions were taken J. Thurman Atkins, contra.

to support said petition, no change or

revocation of said order of maintenance Ross, J., March 9th, 1925.—On April made September 26, 1921, zoth, 1923, the following worded petition made. was presented to this court :

4. On February 6, 1922, the said Da"To the Honorable, the Judges of said vid Miller began an action for divorce Court:

from said Lucy S. Viller, his wife, in “The petition of David Viller, of York the court of common pleas, entered to City, Pennsylvania, respectfully repre- No. 51, Ipril Term, 1922. A subpoena sents :

in divorce was accordingly awarded, re“That on the 26th day of September, turnable to April Term, 1922. 1921, your honorable court directed your 5. On April 17, 1922, the said Lucy petitioner to pay to his wife the sum of S. Miller filed an answer, which denied six ($6.00) dollars per week until fur- the allegations set forth in the said libel ther order of the court.

for divorce filed by said David Miller, “That until the 30th day of Novem- her husband. ber, 1922, your petitioner complied with 6. On the 17th day or April, 1922, the said order of your honorable court. the said Lucy S. Viller filed a petition

“That on the 13th day of October, asking the court to make an order on 1922, in the Second Judicial Districtsaid David Miller to pay the sum of one Court of the State of Nevada in and for hundred and fifty dollars as counsel fees, the County of Washoe, your petitioner so that she could properly prepare her procured a decree of absolute divorce defense to said action of divorce: wherefrom his wife, Lucy S. Miller.

upon, a rule was granted on said David “Therefore, your petitioner prays your Viller to show cause, returnable in two honorable court to grant a rule on Lucy' weeks from that date. S. Miller, prosecutrix in the above men- 7. The records of this court show no

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further action or proceedings in that ac- she lid not appear by counsel in the dition for divorce.

vo.ce proceedings

.." The 8. The petition now before us shows opinion continues: "That the court in that the said David Miller, ignoring and Nevada was without jurisdiction to enneglecting his procedure in this court, ter a decree against an absent defendant, and in the court of common pleas of this under such circumstances, which would judicial district, went to the State of Nebe binding on such defendant, is settled vada and obtained a divorce from his by many authorities and is the law of this said wife, Lucy S. Miller.

state. Whatever effect with respect to The records show that said David the marriage relation the decree may Miller and Lucy S. Viller were married have in the state where it was entered, it in Virville. York County, Pennsylvania, is not recognized as having any validity in 1894. The matrimonial domicile of to affect property rights of the divorced the said David Miller and his wife, Lucy wife whose cdomicil has continued in this S Miller, was always in the State of state. The court of Nevada had not jusPennsylvania at the time and long prior isdiction and, if without jurisdiction, to the 26th day of September, 1921. the there was no vitality to its judgment

, time the Court of Quarter Sessions of which could affect the rights of the first the Peace of York County, Pennsylvania, wife: Haddock v. Haddock, 201 V. S. made an order of maintenance on said 562: Estate of Fyock, 135 Pa. 522; David Viller in favor of the said Luer Platt's App., 80 Pa: 501,

Lucy

. . S. Miller, as recited in our first finding In the case of John W. Haddock vs. of facts, and, at the time the court of Harriet Haddock, 201 L'. S. 562 ( 26 S. the State of Nevada granted him the di- Ct. 525), it was decided that, “The mere vorce mentioned in our eighth finding of domicil within the state of one party to facts, the said Lucy S. Viller continued the marriage does not give the courts of to reside in said York County and State that state jurisdiction to render a decree of Pennsylvania, and did not live or havel of divorce enforceable in all the other a residence anywhere in the State of Ve-states by virtue of the full faith and vada.

credit clause of the federal constitution In deciding the case at bar, it is hardly against a non-resident who did not apnecessary to review all the authorities pear and was not constructively served cited by the petitioner's counsel in his with notice of the pendency of the acbrief and argument.

It is sufficient to

tion.” state the rule adopted in this State, as The Supreme Court of Pennsylvania, expressed by Mr. Justice Henderson, in in the case of Duncan vs. Duncan, 265 rendering the opinion of the Superior Pa. 464, decided (quoting the syllabus ) : Court in Grossman's Appeal, 67 Pa.“. divorce granted in another state, Supr. Ct., 367-36). The circumstances where the parties never resided together, of that case, as stated by Judge Flender- and for cause not arising therein, is of son, are essentially similar to the circum- no validity here, unless the respondent stances of the case at bar. "John S. appeared to the action, or in some way Grossman a resident of Butler recognized the alleged divorce." County, Pennsylvania, and was married

In the opinion in that case, Mr. Jus10 Laura Croll in 1885. They lived there tice Simpson said (page 460), “It neither together as husband and wife until the averred 'nor proved they (the husband 13th day of January, 1911, when they and wife) ever lived together in Nevada, entered into an agreement of separation. or that she ever recognized the alleged Thereupon, the husband went

to the divorce.

Under such circumstances, State of Nevada and on the 17th day of even if granted, it would be of no validNovember, 190, filed a complaint for a ity in this state: Colvin vs. Reed, 55 Pa. divorce in t'ie second judicial district of 375; Reed vs. Elder, 62 Pa. 308: Hadthat state, which case was so proceeded dock vs. Haddock, 201 U. S. 562.” with that a decree of divorce was entered

In reviewing the authorities, we can on the 4th day of January, 1912. The find none which negatives the doctrine cause of action did not arise in Nevada ;announced in the above cited decisions Mrs. Grossman never was in that state;' rendered by the United States Supreme

was

a

Court and the Supreme and Superior We cannot find, and we are loath to Courts of this state.

believe, that any law exists which will The case of Commonwealth vs. Park- sanction or legally sustain such reprehener, 59 Pa. Supr. Ct. 137, differs from the sible conduct as the records and the tescase at bar in that, in that case, the wife timony show was indulged in, in the case voluntarily appeared in the court of an- at bar, by the petitioner. The testimony other state where the husband had shows that he was married in York brought proceedings in divorce, filed an County, Pennsylvania, to Lucy S. Miller, answer and resisted and fought the pro- in 1894; that they lived together as man ceeding, thus recognizing the jurisdiction and wife in that county for sixteen years, and authority of that court.

when in 1911 he abandoned her. His said In the case at bar, the wife never by wife sued him for her support; the court any act recognized the authority of the in York County ordered him to pay tocourt in Nevada, and never lived in that ward the support of his said wife; he state,

made a motion for re-hearing in the same In the case of Thompson vs. Thomp-court; a short time after that he entered son, 226 U. S. 551 (33 S. Ct. 57), it ap- a suit for divorce against his said wife in pears that the parties were married in the Court of Common Pleas of said York the State of Virginia and had a matri-County, Pennsylvania. When his wife monial domicil there, and not in the Dis- resisted said action of divorce by filing trict of Columbia, or elsewhere. The her answer denying the charges conhusband had his actual domicil in that tained in his libel, in said Court of Comstate at all times until and after the con-imon Pleas of York County, Pennsylclusion of the litigation. The divorce vania, he abandoned the suit in Pennsylproceedings were carried on in the state vania and obtained a decree of divorce of his matrimonial residence, and the di- in a state where he had never lived with vorce obtained by him overcame the or- his wife, where she never was, and where der of maintenance made by the court in he knew she could not appear. the District of Columbia, where the wife had gone after marriage and away from

Under the authorities we have cited, her matrimonial residence.

we must conclude that the alleged diIn the case at bar, the husband (the vorce granted by the court of Nevada, present petitioner) deserted the matri- under the circumstances of this case, is monial residence and went to Nevada for not valid as against the jurisdiction of the purpose of separating from his wife, this court. and obtained a decree of divorce in that And now, March 9th, 1925: The rule state while his action for divorce was granted in this case is dismissed, and the still pending, and resisted by his wife, in prayer of the petition is refused, at the this state.

costs of the petitioner.

INDEX

OF CASES REPORTED IN THIS VOLUME

ABATEMENT.

account-Source of money in hands of Insolvency Petition for receiver

administrator-Authority of administraDeath of insolvent- Abatement of pro

for to sell real estate.

-ESTATE OF GEORGE W. FARQUHAR, 20 ceedings-Act of June 4, 1901. -MOONEY'S INSOLVENCY, 82

ADOPTION. ACCOMMODATION MAKER.

Idoption-Living parents---ProtestPromissory notes Accommodation Act of Vay 28, 1915, P. L. 580. maker-Want of consideration - Suffi

Where the parents are living, an affirmaciency of evidence to establish defense

tive decree for the adoption of their child Question for jury.

by another is conditioned upon their con-SCHLOUGH ET AL. V. YETTER, 153

sent, save only where the parental right

must, on due proof, be deemed to have been ACCOUNT.

forfeited for drunkenness, profligacy, etc., or Decedents' Estates Administration neglect to provide for the child. account-Source of money in hands of -ADOPTION OF EVELYN MARION WATERS, 16 administrator-Authority of administrator to sell real estate.

AFFIDAVIT. -ESTATE OF GEORGE W. FARQUHAR, 20

Practice, C. P.-Appeals from justice

Pleading -- Plaintiff's statement ACCOUNTING,

Striking off - Affidavit Acts of April Equity- Accounting Adequate rema 14, 1921, P. L. 144, and May 1.4, 1915, edy at lare.

P. L. 183 -KELLER V. KELLER, 37

-KUREY V. KOCZENOCZ, 51

Plaintiff's statements-Necd not conACTIONS.

tain matters of defense-Affidavit raising Res adjudicataSalaryPayments--question of law-Practice Act of May Separate actions-Conclusive as to sub-14, 1915, P. L. 183. sequent installments.

-WAGNER BROS. CO. V. DOUGLAS, 131 -HULSMAN V. BROOKLINE DISTRICT NO. 306,

Pleuding and practice motion to

amend after entering judgment for part ADEMPTIOX.

if cl:im - Affidacit to amended state

111ent. Will-- Ademption of legacy gieen for

-COURY, ETC. V. STANDARD FIRE INSURANCE services. -APPEAL IN ALEXANDER'S ESTATE, 76

IFFIDIVIT OF DEFENSE. ADMINISTRATION.

Suit by fictitious name-Mechanics' Decedents' Estates Administration lien - 4 fidatit of defense Practice

ETC. 64

CO., 188

SURETY

-AMERICAN

DEN, 44

ANCE CORPORATION, 109

Acts of lume 4, 1915, June 28, 1917, and

Mechanic's lien-Pleading-Rescission May 10, 1921.

of sale-Set-off--Affidavit of defense. -TRISSLER ELECTRICAL SHOP V. WRIGHT, 2 -BLAEBAUM V. JULIUS, 149

Foreign judgment-Sui ton-Affidavit PracticeAffidavit of defense raising of defense.

questions of law-Consolidation of ac-GITMAN BROTHERS V. MARANTZ, 8

iions. Pleading - Affidavit of defense

-WINDER ET AL. V. LUKACHER, 189
Counter-claim.
-BRUBAKER V. KOLLER, 9

AGENCY. Practice-Trespass-Plaintiff's state- Plaintiff's statement - Husband and ment-Affidavit of defense not required wifo-Automobiles - Collision - State

- Motion to strike off, when too late, ment-Averinent of wife's agency as service of copy.

dritcr · Admission Practice Act of -PRENTZEL, TRUSTEE V. SNYDER, 25

May 14, 1915.

-WETTER V. SMITH, 35 Practice - Action against surety Demurrer--4 ffidavit of defense-Post- Contracts--Insurance against liability ponement of case of law raised by de- for injury by automobile-variance of murrer until after jury trial.

policy by parole-Substitution of insured COMPANY V. McSPAD- without endorsement on policy-Limita

tion of agent's powerEffect of agent's Intoxicating liquors-Plaintiff's state-conduct on policy. ment-Contracts-Illegal contract-Vio- -THOMAS V. EMPLOYERS LIABILITY ASSURlation of liquor laws - Statement of

claim-Practice, C. P.-Affidar'it of de

ALLEGATION. fence-Merits and lawStatement of claim.

Pleading-Allcgation defined-Mater-FRITZ ET UX. V. McGEEHAN, 45

ial allegations-Ausavering paragraph in Affidavit of defense --- Pleading and affidavit of defense-Lump charges and practice-ReplevinStatement of claim claims for damages-Striking off affida-Anticipation-Demurrer-Damages

dit of defense. Oath-Act of 1901 - Practice Act of

-REICHARD V. PARIS, 125 1915. --DIEDRICK V. RUSSELL & CO., ET AL., 55 AMENDMENT.

Vendor and t'endee-Contract-Sale Mechanic's lien-Amendment-Act of of land - Recovery of hand-money - June 4, 1901, P.L. 131. A ffidavit of defence-Failure of per- -HAGEN LUMBER Co., V. BRIGHT, ET AL., 72 formance.

Pleading and practice motion to -SCHUMAN V. BARRY, 66

amend after entering judgment for part Practice, C. P.-Plaintiff's statement of claim - Affidavit to amended state

-Goods sold and delivered-Book ac

vicit. count without dates or descriptize items -COURY, ETC. V. STANDARD FIRE INSURANCE

- Affidaz'it of defense in lieu of demurrer. -DOMBROWSKI V. WALCZLGLOWA, 122

ANNULMENT.

Husband and wife - Divorce - Void Pleading-Allegation defined-Mater

ial allegations- Answering paragraph in marriages-Bigamy— Annulment "Inaffidavit of defense-Lump charges and nocent or injured party"-Act of April claims for damages-Striking off a ffida-, 14, 1859.

-MALLON V. MALLON, 179 v'it of defense. -REICHARD V. PARIS, 125

IPPEL Foreign attachment -- Stalcment of claim - I ffidatit of defence - Striking

Defendant's appeal-Striking off apoff judent-Practice, C.P.

pea!--:litorney at law as surety-Rule Tof court.

188

MBRIDE V. BARTOL ET AL.. 127

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