Michel v. Michel

Schuylkill County Court of Common Pleas

Michel v. Michel

26 Pa. D. & C. 399, 1936 Pa. Dist. & Cnty. Dec. LEXIS 318

CourtPennsylvania Court of Common Pleas, Schuylkill County

DecidedJune 1, 1936

Docketno. 178

StatusPublished

This text of 26 Pa. D. & C. 399 (Michel v. Michel) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Schuylkill County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Michel v. Michel, 26 Pa. D. & C. 399, 1936 Pa. Dist. & Cnty. Dec. LEXIS 318 (Pa. Super. Ct. 1936).

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Opinion

Houck, J.,

The report must be remanded to the master. Rule 123 has not been observed. It provides, inter alia, as follows:

“The testimony when written out shall be read to the witness by the master and subscribed by each witness, unless such signing be waived by the parties, of which the master shall make a note.”

The testimony is not subscribed and the master has made a note that the signing was waived. However, respondent did not appear and, consequently, could not waive the signing of the testimony. The rule provides that the signing may be waived “by the parties”, not by one of the parties.

Two grounds are laid in the libel: Cruel and barbarous treatment and indignities to the person. It is impossible to ascertain from the master’s findings of fact upon which ground he recommends a decree. It is apparent that he believes both grounds have been established. If so, he should make a specific finding of fact to that effect. In other words, if cruelty is established, the finding of fact should be substantially that the respondent has, by cruel and barbarous treatment, endangered the libellant’s life, and, if indignities to the person are established, the finding should be substantially that the respondent has offered such indignities to the libellant’s person as to render her condition intolerable and life burdensome. A specific finding of fact as to the ground or grounds relied upon for the granting of the divorce is an absolute prerequisite to our consideration of the master’s report: Rix v. Rix, 25 Schuyl. L. R. 32; Lengle v. Lengle, 27 Schuyl. L. R. [401]*401113. To state the grounds relied on partly as facts and partly as conclusions of law is not sufficient: Rodegues v. Rodegues, 30 Schuyl. L. R. 216.

And now, June 1, 1936, the record is remanded to the master for further action in accordance with the views expressed in this opinion.

From G. Harold Watkins, Frackville.

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Houck, J.,

The report must be remanded to the master. Rule 123 has not been observed. It provides, inter alia, as follows:

“The testimony when written out shall be read to the witness by the master and subscribed by each witness, unless such signing be waived by the parties, of which the master shall make a note.”

The testimony is not subscribed and the master has made a note that the signing was waived. However, respondent did not appear and, consequently, could not waive the signing of the testimony. The rule provides that the signing may be waived “by the parties”, not by one of the parties.

Two grounds are laid in the libel: Cruel and barbarous treatment and indignities to the person. It is impossible to ascertain from the master’s findings of fact upon which ground he recommends a decree. It is apparent that he believes both grounds have been established. If so, he should make a specific finding of fact to that effect. In other words, if cruelty is established, the finding of fact should be substantially that the respondent has, by cruel and barbarous treatment, endangered the libellant’s life, and, if indignities to the person are established, the finding should be substantially that the respondent has offered such indignities to the libellant’s person as to render her condition intolerable and life burdensome. A specific finding of fact as to the ground or grounds relied upon for the granting of the divorce is an absolute prerequisite to our consideration of the master’s report: Rix v. Rix, 25 Schuyl. L. R. 32; Lengle v. Lengle, 27 Schuyl. L. R. [401]*401113. To state the grounds relied on partly as facts and partly as conclusions of law is not sufficient: Rodegues v. Rodegues, 30 Schuyl. L. R. 216.

And now, June 1, 1936, the record is remanded to the master for further action in accordance with the views expressed in this opinion.

From G. Harold Watkins, Frackville.

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Bluebook (online)

26 Pa. D. & C. 399, 1936 Pa. Dist. & Cnty. Dec. LEXIS 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michel-v-michel-pactcomplschuyl-1936.