Erdner v. Erdner

83 A. 420, 234 Pa. 500, 1912 Pa. LEXIS 678

• Court: Supreme Court of Pennsylvania
• Decided: January 2, 1912
• Docket: Appeal, No. 98
• Status: Published

Opinion

Opinion by

Mr. Justice Moschzisker,

This is an appeal from an order discharging a rule to set aside the service by publication of a bill in equity filed under the Act of May 23,1907, P. L. 227, as amended by the Act of April 27, 1909, P. L. 182. The appellee states in its brief that any objection to the plaintiff’s appeal upon the ground that it might be viewed as from an interlocutory order, and all other such possible objections, are waived “for the purpose of settling the property rights involved.” The opinion of Judge Shafer in the court below disposes of the several questions discussed therein so satisfactorily that it is unnecessary to treat of them here. But we feel that the service was insufficient to support the decree entered.

There are two sections in the Act of 1909; the first provides, “That if any man shall separate himself from his wife without reasonable cause, and being of sufficient ability, shall neglect-or refuse to provide suitable maintenance for his said wife, such wife * * * is hereby empowered to bring her action * * in equity against such husband for maintenance * * * and the said court shall have power to entertain a bill in equity in such action, and shall make and enforce such orders and decrees as the equities of the case demand; and * * * the husband and wife shall be fully competent as witnesses.” The second section provides, “Whenever such husband shall absent himself from the commonwealth, proceedings may be had against any property, real or personal, of said husband, necessary for the suitable maintenance of said wife, and the court may direct a seizure and sale, or mortgage, of sufficient of such estate as will provide the necessary funds for such maintenance; and service upon the defendant shall be made in the manner provided in the Act of * * * sixth of April, 1859;” The Act of April 6, 1859, P- L. 387, provides “that in any proceeding in equity concerning goods, chattels, lands, etc., situate or being within the jurisdiction of such court * * *” or “where the court have acquired jurisdiction of the subject-matter in controversy by the service of its process on one or more of the principal defendants” that personal service may be made outside of the jurisdiction of the court wherever the defendant may be found and “that whenever it shall appear to the satisfaction of such court” that the defendant cannot be found “so as to be personally served,” the court may make an order for service by publication, and upon the expiration of the time fixed in the order, “proceed as fully and effectually as if such process had been served within the jurisdiction of such court.”

The Acts above referred to contemplate two sitúa-. lions, one, a proceeding against the person; and the other, a proceeding in rem. In the former power is given “to make and enforce such orders and decrees as the equities of the case demand”; but in the latter the court is only authorized to “direct a seizure and sale, or mortgage, of sufficient of such estate as will provide the necessary funds” for the “suitable maintenance” of the wife. In the first, personal service is intended, and enlarged powers are given to the court; while in the last, service only by publication is contemplated, and the powers thereunder are limited. This same idea is to be found in the earlier Acts of Assembly to compel support, where warrants for the arrest of the person and warrants for the seizure of goods are both provided for (See 1 Stewart’s Purdon’s Dig. 13 Ed. p. 1217, et seq.); and in Guardians of the Poor v. Picard, 1 S. & R. 239, construing these earlier Acts, we held that the delegation by the judges of the power and duty of determining the amount of a husband’s property to be taken for the maintenance of his wife and family was not conformable to either the words or the spirit of the law. Here the decree expressly declares that the receiver is “to take charge of all property of defendant and preserve the assets for the benefit of creditors;” it authorizes him “to sell or mortgage sufficient of such assets” for the “benefit of creditors” and the “support and maintenance of the wife,” and contains an order restraining all creditors from proceeding against the defendant or his property. Under the service in this case the court had power to direct a sale or mortgage of so much of defendant’s estate as might be necessary for the maintenance of the plaintiff, but before so doing it should first have determined what amount would be suitable, and, next, what property of the defendant should be taken for that purpose; then it could have decreed a sale or mortgage accordingly. Since the property affected was within the jurisdiction, service by publication was sufficient, and we cannot say that the notice was lacking in any essential detail; but the court had no power to delegate to the receiver the duty of deciding the amount that would be necessary or suitable for the maintenance of the wife, or of determining the property to be sold or mortgaged for that purpose; nor could it make this special statutory remedy given to a wife a substitute for a bankruptcy or insolvency proceeding for the benefit of creditors.

The fifth assignment of error which goes to the final decree is sustained, and the others will not be passed upon; the decree is set aside, the costs to be paid by the appellant’s estate.