Dierkes v. City of Philadelphia

93 Pa. 270, 1880 Pa. LEXIS 138

• Court: Supreme Court of Pennsylvania
• Decided: February 25, 1880
• Status: Published

Opinion

Mr. Justice Paxson

delivered the opinion of the court, May 3d 1880.

This was a proceeding in the court below to compel the plaintiff in error to provide for the support of his mother. After a hearing the court made an order “that the defendant, Erank J. Dierkes, pay the sum of three dollars per week for the support of his mother Rosanna, and the further sum of-dollars for each of his minor children, from the 8th of September 1877, and give security in the sum of $300 for the faithful performance of this order, pay the costs, and stand committed until the order be complied with.”

This order was assigned for error. The 28th section of the Act of 13th June 1836, Pamph. L. 547, under which it is said the order was made, does not justify it. Said section provides that in such cases the defendant shall comply with the order of the court “ on pain of forfeiting a sum not exceeding twenty dollars for every month they shall fail therein, which shall be levied by the process of the said court, and applied to the relief and maintenance o.f such poor person.” The act does not authorize the court to require security, much less to commit the defendant for a non-compliance with its order. Nor can the power to commit for contempt in not obeying the order be implied in view of the penalty expressly imposed. That penalty is $20 per month which “shall be levied by the process of the said court.” The error was doubtless caused by the carelessness of a clerk in making out the order, as the blank used was intended for desertion cases in which the law is different, and the form in question the proper one.

Judgment reversed.