Commonwealth v. Smith , 200 Pa. 363 ( 1901 )

Opinion by

Mr. Justice Brown,

On this appeal we are asked to review the judgment of the Superior Court, affirming the decree of the court of quarter sessions of Dauphin county in a proceeding instituted under the Act of April 13, 1867, P. L. 78, by Lizzie S. Smith against her husband, Harry E. Smith, to compel him to support her. No appeal lies from the final order of the court of quarter sessions made on the hearing of a desertion case under this act, for the purpose of allowing us to review the exercise of the discretion of the court below in making it. An appeal from such an order under the Act of May 9, 1889, P. L. 158, is still only a common-law certiorari, and on it we can pass upon nothing but the regularity of the proceedings below. If the record shows that the husband was charged with desertion upon the oath of his wife, a hearing, conviction and appropriate sentence, there is nothing for us to do but to affirm the judgment. This has been so distinctly announced in Commonwealth v. James, 142 Pa. 32, and other cases, that it ought to be understood.

It is contended, however, that, under the authority of Commonwealth v. Richards, 131 Pa. 209, we ought to determine whether the agreement of separation executed by the appellant and his wife was a bar to the latter’s right to ask for an order of maintenance. In that case, it is true, we did pass upon the effect of articles of separation in a case like this, brought upon the record by formal bill of exception; but, in doing so, our late Brother Clank said “as no question is raised as to the disposition of the case on a certiorari, we will consider it as the parties have presented it.” It is doubtful whether, even if no question was raised as to the disposition of that case on its merits, it should have been so disposed of on certiorari; for, in In re Carlson’s License, 127 Pa. 830, which was a certiorari to the order of the court of quarter sessions revoking a license to sell liquors, under section 7 of the Act of May 13, 1887, P. L. 110, decided but a few months before, it was held that neither the testimony nor the opinion of the court below formed any part of the record which might be considered, and that the agreement of counsel, that the testimony might be omitted from the paper-book and the finding of facts as contained in the opinion of the court below should be considered in lieu of it, was nugatory. But the question is here raised, and we can review this record no further than to ascertain whether the court below had jurisdiction and the proceedings were regular. A deed of separation, not fraudulently procured, the terms of which are not unreasonable and which has not become null and void by the acts of the parties, is a bar to a proceeding like this ; but whether these conditions exist in any particular case, must always be, on all the facts as developed, for the court below, and not for us. The Superior Court properly entertained this view. The court of quarter sessions of Dauphin county having had jurisdiction of the proceedings instituted, and no irregularity in them having been pointed out, the judgment of the Superior Court, affirming its order, is now affirmed.