In Re Petition of Leakadia Cheska ( 1927 )

Argued March 7, 1927. By decree of June 1, 1925, Leakadia Cheska was declared a feme sole trader. On July 29, 1925, her husband, the appellant, filed a petition setting forth that the decree had been made without notice to him, denying the allegations contained in the petition on which it was made, averring that the petition had not been filed in good faith by his wife, and praying that it be vacated for those reasons. The wife filed an answer to that petition, taking issue with its averments. The court dismissed his petition as unsupported by any evidence. This appeal is from that order.

The only evidence in support of the husband's petition was his deposition that he was a resident of Olyphant, in Lackawanna County, at the time his wife's petition was filed and for some years prior. He was incompetent to testify:

[*]Knauer's Petition, 287 Pa. 115, 119. When the wife's petition to be declared a feme sole trader was presented the court ordered that service be made by publication once a week for three weeks in a daily paper published in the county and also in the Lackawanna Jurist, that a hearing would be held at a given date and place designated. This was authorized by Section 4 of the Act of May 4, 1855, P.L. 430. Facts sufficient to authorize the decree pursuant to the Act of May 28, 1915, P.L. 639, were doubtless presented, for it states that it was made in accordance with "the evidence and proof in support" of the petition: see Harper's Petition, 288 Pa. 52. Since the husband offered no evidence whatever to support the allegations in his petition to vacate, the court was required to dismiss it.

Order affirmed at cost of appellant.

[*] Reporter's Note. — The Act of May 10, 1927, makes husband and wife competent to testify against each other in feme sole trader proceedings.