Longenbach v. Longenbach

Lehigh County Court of Common Pleas

Longenbach v. Longenbach

76 Pa. D. & C. 443, 1951 Pa. Dist. & Cnty. Dec. LEXIS 267

CourtPennsylvania Court of Common Pleas, Lehigh County

DecidedMarch 12, 1951

Docketno. 29

StatusPublished

This text of 76 Pa. D. & C. 443 (Longenbach v. Longenbach) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Longenbach v. Longenbach, 76 Pa. D. & C. 443, 1951 Pa. Dist. & Cnty. Dec. LEXIS 267 (Pa. Super. Ct. 1951).

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Opinion

Henninger, P. J.,

— Plaintiff in-instituted the above action in divorce on October 5, 1949. On November 17, 1949, the date set for a hear[444]*444ing, defendant appeared personally and requested the opportunity to procure counsel, whereupon the master set December 2,1949, as the date for hearing. On that date, defendant and her counsel appeared and called the master’s attention to the fact that a rule was pending for counsel fees and the hearing was postponed to a date to be agreed upon.

After several futile efforts to get the parties to determine the rule for counsel fees, the master, in December 1950, notified plaintiff’s counsel that unless the case was proceeded with prior to February 1, 1951, he would file a report recommending dismissal of the libel. This warning having produced no results, the master has filed a report recommending dismissal of the libel for failure to prosecute the same.

For a plaintiff in divorce to establish his case, he must come forward with satisfactory evidence: Esenwein v. Esenwein, 312 Pa. 77, 78. This plaintiff has not done, although challenged to do so on several occasions. That he was barred from.doing so by the stay accompanying his wife’s rule for counsel fees is no excuse, since he could have forced that issue had he seen fit to do so. Clearly then, the master was within his rights •in compelling the parties to proceed and upon their failure to heed his importunities, to recommend dismissal of the libel, since the burden was on plaintiff to establish his case: Esenwein v. Esenwein, supra; Waring et al. v. The Pennsylvania Railroad Company, 176 Pa. 172, 176. Both parties have received notice of the filing of the master’s report recommending dismissal of the libel and neither one has excepted thereto.

Now, March 12, 1951, the report of the master and examiner is confirmed and his recommendation adopted by the court and it is ordered and decreed that the libel be dismissed at plaintiff’s costs.

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Henninger, P. J.,

— Plaintiff in-instituted the above action in divorce on October 5, 1949. On November 17, 1949, the date set for a hear[444]*444ing, defendant appeared personally and requested the opportunity to procure counsel, whereupon the master set December 2,1949, as the date for hearing. On that date, defendant and her counsel appeared and called the master’s attention to the fact that a rule was pending for counsel fees and the hearing was postponed to a date to be agreed upon.

After several futile efforts to get the parties to determine the rule for counsel fees, the master, in December 1950, notified plaintiff’s counsel that unless the case was proceeded with prior to February 1, 1951, he would file a report recommending dismissal of the libel. This warning having produced no results, the master has filed a report recommending dismissal of the libel for failure to prosecute the same.

For a plaintiff in divorce to establish his case, he must come forward with satisfactory evidence: Esenwein v. Esenwein, 312 Pa. 77, 78. This plaintiff has not done, although challenged to do so on several occasions. That he was barred from.doing so by the stay accompanying his wife’s rule for counsel fees is no excuse, since he could have forced that issue had he seen fit to do so. Clearly then, the master was within his rights •in compelling the parties to proceed and upon their failure to heed his importunities, to recommend dismissal of the libel, since the burden was on plaintiff to establish his case: Esenwein v. Esenwein, supra; Waring et al. v. The Pennsylvania Railroad Company, 176 Pa. 172, 176. Both parties have received notice of the filing of the master’s report recommending dismissal of the libel and neither one has excepted thereto.

Now, March 12, 1951, the report of the master and examiner is confirmed and his recommendation adopted by the court and it is ordered and decreed that the libel be dismissed at plaintiff’s costs.

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Bluebook (online)

76 Pa. D. & C. 443, 1951 Pa. Dist. & Cnty. Dec. LEXIS 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/longenbach-v-longenbach-pactcompllehigh-1951.

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