Palmer v. Palmer

Washington County Court of Common Pleas

Palmer v. Palmer

5 Pa. D. & C. 336, 1924 Pa. Dist. & Cnty. Dec. LEXIS 117

CourtPennsylvania Court of Common Pleas, Washington County

DecidedJanuary 28, 1924

DocketNo. 67

StatusPublished

This text of 5 Pa. D. & C. 336 (Palmer v. Palmer) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Washington County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Palmer v. Palmer, 5 Pa. D. & C. 336, 1924 Pa. Dist. & Cnty. Dec. LEXIS 117 (Pa. Super. Ct. 1924).

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Opinion

Brownson, P. J.,

This case is not in such a shape that we can now pronounce in favor of libellant a binding and conclusive decree. All the proceedings subsequent to the filing of the libel are irregular and defective for want of a proper party upon the record to represent the interests of the respondent wife. It appears that she is a minor, and the libellant himself testified that at the time the testimony was taken she was sixteen years of age. He did not take any steps to cause her to be represented by a guardian, but proceeded to prosecute the action against herself alone. As a minor is capable of appearing and defending a legal action only by a guardian, general or ad litem (Mitchell v. Spaulding, 206 Pa. 221), and as it is necessary in a divorce action that service shall be had upon some party who has legal capacity to defend, there should be, if the spouse against whom the divorce is prayed for be a minor, service of a subpeena upon a guardian, so that he [337]*337may supervise and manage the presentation of a defence, if such there be: Crowthers v. Crowthers, 1 Wash. Co. Reps. 169. And such guardian should also be served with notice of the hearing before the master. Not only is a minor wife not legally presumed to be capable of protecting her interests, but if she be only sixteen years old, she is likely to be in actual ignorance of her rights. As soon as he discovered the infancy of the respondent, the master should have suspended further proceedings until a guardian would be brought upon the record.

In the case of Speicher v. Speicher, 67 Pitts. L. J. 696, it was held that one of the effects of the Act of June 11, 1879, § 2, P. L. 126, was to empower a deserted minor wife to sue in her own name for a divorce. If we assume that this result was intended, and that the qualifying words “in the same manner and with like effect as if she were sole and unmarried” do not manifest an intent to limit the scope of the enactment to a removal of the disability of marriage merely, but that it was designed, in the circumstances specified, to remove also the disability of infancy, and that the act has not been repealed by subsequent legislation, still by its terms that act could have no application to a case like the present.

And now, Jan. 28, 1924, the court, without adjudicating the merits of the case, refuse at present to make the decree recommended by the master, for the reason and upon the ground that there is upon the record no party legally capable of representing the interests of the infant respondent, and it is ordered that all proceedings be stayed until a guardian shall legally be made a party for the purpose of representing her.

Prom Harry D. Hamilton, Washington, Pa.

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Brownson, P. J.,

This case is not in such a shape that we can now pronounce in favor of libellant a binding and conclusive decree. All the proceedings subsequent to the filing of the libel are irregular and defective for want of a proper party upon the record to represent the interests of the respondent wife. It appears that she is a minor, and the libellant himself testified that at the time the testimony was taken she was sixteen years of age. He did not take any steps to cause her to be represented by a guardian, but proceeded to prosecute the action against herself alone. As a minor is capable of appearing and defending a legal action only by a guardian, general or ad litem (Mitchell v. Spaulding, 206 Pa. 221), and as it is necessary in a divorce action that service shall be had upon some party who has legal capacity to defend, there should be, if the spouse against whom the divorce is prayed for be a minor, service of a subpeena upon a guardian, so that he [337]*337may supervise and manage the presentation of a defence, if such there be: Crowthers v. Crowthers, 1 Wash. Co. Reps. 169. And such guardian should also be served with notice of the hearing before the master. Not only is a minor wife not legally presumed to be capable of protecting her interests, but if she be only sixteen years old, she is likely to be in actual ignorance of her rights. As soon as he discovered the infancy of the respondent, the master should have suspended further proceedings until a guardian would be brought upon the record.

In the case of Speicher v. Speicher, 67 Pitts. L. J. 696, it was held that one of the effects of the Act of June 11, 1879, § 2, P. L. 126, was to empower a deserted minor wife to sue in her own name for a divorce. If we assume that this result was intended, and that the qualifying words “in the same manner and with like effect as if she were sole and unmarried” do not manifest an intent to limit the scope of the enactment to a removal of the disability of marriage merely, but that it was designed, in the circumstances specified, to remove also the disability of infancy, and that the act has not been repealed by subsequent legislation, still by its terms that act could have no application to a case like the present.

And now, Jan. 28, 1924, the court, without adjudicating the merits of the case, refuse at present to make the decree recommended by the master, for the reason and upon the ground that there is upon the record no party legally capable of representing the interests of the infant respondent, and it is ordered that all proceedings be stayed until a guardian shall legally be made a party for the purpose of representing her.

Prom Harry D. Hamilton, Washington, Pa.

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Bluebook (online)

5 Pa. D. & C. 336, 1924 Pa. Dist. & Cnty. Dec. LEXIS 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palmer-v-palmer-pactcomplwashin-1924.