Commonwealth Ex Rel. Milne v. Milne , 149 Pa. Super. 100 ( 1942 )

Argued May 6, 1942. On February 11, 1942 the relatrix, Frederica L. Milne, obtained a rule in the municipal court upon her husband, Caleb J. Milne, 3d, this appellant, to show cause why an order of support entered against him on February 25, 1924 — which had been reduced from time to time at his instance, the last reduction having been made by the court on March 23, 1936 — should not be increased in consequence of a very considerable betterment of his financial condition, as a result of the death of his father — a man of large means — and the will of the latter bequeathing him one-third of the net income of a large trust estate.

The husband obtained a rule — under the Act of March 5, 1925, P.L. 23, 12 PS sec. 672, et seq. — to show cause why service of the said rule, and the petition on which it was based, should not be set aside and the rule discharged for want of jurisdiction, which the court, after hearing, discharged. The husband appealed.

The question involved is solely one of jurisdiction.

The opinion of the court below, the essential part of which will be printed in the reporter's statement, fully justifies the order appealed from.

To the citations contained in the opinion may be added the case of Carey v. Carey, 121 Pa. Super. 251, 183 A. 371, which supports the legal principle that where a court has acquired jurisdiction over a party to an action, a rule which is merely ancillary or auxiliary to that action may be served on him by any adult person, wherever he may be found, or by any method sufficient to give him actual notice of the petition and rule and reasonable opportunity to be heard upon it. See also, In re MinorChildren of Rosenthal, 103 Pa. Super. 27, 30, 157 A. 342.

This, we may add, is especially the case in proceedings for support and maintenance under the Act of April 13, 1867, P.L. 78, and its amendments, in which the orders of the court are not irrevocably fixed and final, but are subject to be increased, reduced or vacated when the financial condition of the parties changes or other proper reasons exist.

For the reasons set forth in the court's opinion, as it appears in the reporter's statement, the order is affirmed at the costs of the appellant.