Duncan v. Duncan

Opinion by

Mr. Justice Simpson,

Plaintiff filed a bill in equity against ber husband, averring he had deserted her without reasonable cause, and though being of sufficient ability had neglected or refused to provide suitable maintenance for her; and prayed, in accordance with the provisions of the Acts of May 23, 1907, P. L. 227; April 27, 1909, P. L. 1¿2, and July 21,1913, P. L. 867, the court to direct a seizure and sale or mortgage of sufficient of his estate to provide for her maintenance. The defendant’s answer denied he had deserted her without reasonable cause, and averred their separation was due to her cruel and barbarous treatment of him, which had rendered his existence intolerable and life burdensome, and that he had obtained a valid divorce from her. Without the filing of a replication, and without the attention of the court being called thereto, the case was tried in the usual manner, evidence was taken, requests for findings of fact and conclusions of law were presented by each party, and the case was fully argued upon the evidence produced. Subsequently, under objection and exception, plaintiff was permitted to file a replication nunc pro tunc as of a date preceding the time of trial; and about a month and a half later defendant made a motion to reopen the case which was refused, and an exception granted. The adjudication was in favor of plaintiff for part of the relief sought; both sides excepted, the exceptions were dismissed, a final decree entered, and defendant now appeals.

The thirty-three assignments of error may be considered under six heads: (1st.) Was defendant’s desertion without justification or excuse? (2d.) Was plaintiff a resident of Cambria County, Pennsylvania, at the time of the desertion and subsequently? (3d.) Was defendant possessed of property, within the jurisdiction of the court? (4th.) Were the parties husband and wife? (5th.) Were the costs properly charged upon the funds in the hands of Gertrude H. Duncan, defendant’s sister? (6th.) Did the court below err in allowing the replication to be filed nunc pro tunc, and in refusing to reopen the case? The first two of these questions will be considered together.

Upon abundant evidence the court below found the following facts: Plaintiff and defendant were married in Greensburg in this State, and in the early part of 1917 were living together in Buffalo, New York, where (as he avers in his ninth request for a finding of fact) she “was deserted by her husband......on the 5th day of February, A. D. 1917,” he removing to Johnstown, Cambria County, in this State and taking up his residence with his parents. He wrote her from Johnstown, telling her he had taken up his residence there, asking her to come and live with him at a home he would provide, and to bring with her all their personal belongings. In compliance with his request she came, and, he not meeting her at the railroad station, she went to his parents’ house in Johnstown, but was unable to remain because the family objected. Defendant then took her to a hotel in that city, and paid her board, but within a short time he again deserted her without cause and went West, writing her “I hope that I will never see or hear from or of, you, or any one connected with you again.” Thereafter he sent her small sums of money for a time, but never returned to her or asked her to come to him. Continuously since then she has lived in Cambria County. Even if we thought the court below might have found the facts otherwise, which we do not, as there was abundant evidence to support the findings, they will not be disturbed on appeal: First National Bank of Pittsburgh v. McKinley Coal Co., 210 Pa. 76.

Was defendant possessed of property within the jurisdiction of the court? Admittedly he was possessed of the household belongings brought from the Buffalo home, and even if we assume despite his general appearance by counsel, that the existence of property subject to seizure was essential to sustain the jurisdiction of the court below, those household belongings within the county would suffice for that purpose, irrespective of the stock and cash which were decided to be his, and the correctness of which decision he is not in position to challenge. If they were his they were properly seized; if not, he was not injured, and therefore has no legal ground of complaint.

Were the parties husband and wife? It is admitted they had been married, and the relation continued unless he subsequently obtained a valid divorce. There was, however, no competent evidence to prove a divorce. There was evidence he alleged he went to Eeno, Nevada, established a residence there, for some unstated reason began proceedings in divorce there, attempted to serve her with process in Johnstown in this State by causing to be read to her some paper the contents of which are not shown, obtained a divorce in Reno, and later sent her a copy of the decree. It is neither averred nor proved they ever lived together in Nevada, or that she ever recognized the alleged divorce. Under such circumstances even if granted it would be of no validity in this State: Colvin v. Reed, 55 Pa. 375; Reel v. Elder, 62 Pa. 308; Haddock v. Haddock, 201 U. S. 562.

Was it error to charge the costs upon the funds in the hands of Gertrude H. Duncan? Either those funds did or they did not belong to defendant. If they did, admittedly the costs were properly charged thereupon, for they were funds seized as provided by the statutes. If they did not, he is not injured by the costs being so charged, and cannot be heard to complain thereof.

Did the court below err in allowing the replication to be filed nunc pro tunc? *It is true when a plaintiff orders a case for argument upon bill and answer, without a replication,' he concedes the truth of all the material averments of the answer, whether responsive to those of the bill, or new matter in avoidance thereof: Mazet v. Pittsburgh, 137 Pa. 548. Equity Rule 46, provides, however, that if plaintiff does not file his replication within ten days after receiving a copy of the answer, “the defendant shall be entitled to a rule upon him to reply within ten days after notice of such rule; on failure to file such replication with notice to defendant’s counsel, the plaintiff shall be deemed to have abandoned his right to traverse the matters alleged in the answer.” It is a fair inference from this rule that the conclusive effect of the averments of the answer does not arise where, as here, the defendant did not take a rule to file a replication. This is admitted by defendant, who says in his paper-book: “Plaintiff not having been ruled by the defendant to file her replication, the plaintiff had the right to introduce what evidence she saw fit in contradiction of the facts averred in the answer.”

Moreover, if this conclusive effect existed notwithstanding defendant’s failure to take the rule, then upon the trial of the case it was his duty to object to any evidence being produced and to move for the dismissal of the bill because the answer set up a complete defense; for in that event “the court cannot look beyond the pleadings”: Randolph’s App., 66 Pa. 178. He did neither of these things. His counsel took part in the trial throughout, but did not call attention to the fact that a replication had not been filed. On the contrary, he and everybody else proceeded with the trial in all respects as if the replication had been filed. He treated the evidence taken as valid for all purposes, and in his requests for findings of fact and conclusions of law asked the court to decide the case solely upon that evidence. When, therefore, the court allowed the replication to be filed nunc pro tunc, it only made the record accord with everybody’s conduct at the trial, did not alter the legal status of the case in any respect, and hence did not abuse its discretion.

Should it have reopened the case upon defendant’s request? We have frequently decided that an application to reopen a case is one addressed to the sound discretion of the court, and its decision will not be reversed except for clear error: Roddy’s App., 99 Pa. 9; Bailey’s Est., 208 Pa. 594. As the legal status here was not altered by the filing of the replication, defendant was required to state his reasons for desiring the case to be reopened. This he did not do. His petition did not set forth any reason for the request; it did not allege that anything was done or left undone because the replication had not been filed sooner, or even that he had additional evidence he desired to produce. For all that appears of record his only reason may have been to delay the progress of the case, or to have a reargument. Under , such circumstances we cannot say the refusal to reopen the case was a clear abuse of discretion, and hence we cannot reverse upon that ground.

The decree is affirmed and the appeal dismissed at the costs of appellant.