Opinion
April 9, 1968.
June 13, 1968.
Practice — Agreement of parties resolving litigation — Enforcibility — Evidence as to conclusion of agreement.
1. An agreement, approved by the parties or their counsel, terminating divorce and alimony proceedings, is enforcible.
2. On appeal from the refusal of the court below to strike an order which, among other things, non prossed or discontinued a divorce action from bed and board and discharged an order for alimony pendente lite and all arrearages, resolving all the litigation between the parties, in which it appeared that wife-plaintiff denied that such an agreement was ever concluded, it was Held, in the circumstances, that the order of the court below should be reversed and the record remanded for a prompt hearing to determine whether the order as entered represented the agreement of the parties.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and HANNUM, JJ.
Appeal, No. 80, April T., 1968, from order of Court of Common Pleas of Allegheny County, April T., 1967, No. 669, in case of Mary Carter v. James Carter. Order reversed.
Proceeding for divorce from bed and board.
Order entered by alleged agreement of parties resolving all litigation, opinion by McLEAN, JR., J. Plaintiff appealed.
Clyde P. Bailey, with him Bailey Bailey, for appellant.
Allen N. Brunwasser, for appellee.
Argued April 9, 1968.
This appeal is from the refusal of the Court of Common Pleas of Allegheny County to strike an order of said court which, among other things, non-prossed or discontinued a divorce action from bed and board, and discharged an order for alimony pendente lite and all arrearages.
The parties to this action have become involved in a welter of legal proceedings both civil and criminal and the order as entered resolved all this litigation. It was, in the opinion of the court below, entered by agreement of the parties. The appellant, however, denies that such an agreement was ever concluded.
If, in fact, there was such an agreement and appellant's counsel approved it, then the agreement is enforceable. Good v. Grit Publishing Co., 214 Pa. 614, 63 A. 1039 (1906). The record, however, indicates the order was prepared by counsel for the appellee and signed by the appellee but never signed by the appellant. No hearing was ever held to determine whether or not this order represents the agreement of the parties, and was apparently entered without notice to the appellant. A meeting of counsel for both litigants was held with the court below on July 26, 1967, however, no order was entered until November 6, 1967.
To avoid any possible injustice and infringement of the constitutional rights of the parties involved this Court makes the following order.
The order of the Court of Common Pleas of Allegheny County entered November 6, 1967, is hereby reversed, and the record in this case is remanded to the court below for a prompt hearing to determine whether the order as entered represented the agreement of the parties. All counsel of record at that time and parties of interest shall be present and heard, after which, the court below shall enter an appropriate order.