Opinion
May 7, 1937.
July 15, 1937.
Courts — Jurisdiction — Desertion and nonsupport — Residence or domicil of husband, wife, or children — Physical presence of husband within state — Act of April 13, 1867, P.L. 78.
Where a prosecution for desertion and nonsupport is brought in good faith, under the Act of April 13, 1867, P.L. 78, the residence or domicil of the husband or the wife, or the children, is not material to the jurisdiction of the court; it is sufficient if the husband is physically present within the state and the prosecutrix is within the county where the information is made and the warrant issued.
Appeal, No. 76, April T., 1937, from order of Q.S. Westmoreland Co., Aug. T., 1935, No. 233, in case of Commonwealth v. Andrew Husinka.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, JAMES and RHODES, JJ. Order affirmed.
Proceeding in quarter sessions upon information charging defendant with failure to support his children. Before COPELAND, P.J.
Order entered dismissing rule for rehearing.
The facts are stated in the opinion of the court below, as follows:
In the above case the defendant filed a petition asking for a rule to show cause why a re-hearing should not be granted to review an order of support for his minor children, which order was made on August 1, 1935. The reasons alleged for a re-hearing are that the defendant is not a resident of Westmoreland County and that the prosecutrix and the defendant's children are residents of the State of Michigan and were never residents of Westmoreland County.
An answer to the petition and rule was filed, in which the prosecutrix raises the question of law as to the jurisdiction of this court.
This prosecution is based on the Act of Assembly of April 13, 1867, P.L. 78, the first section of which provides as follows:
"That in addition to the remedies now provided by law, if any husband, or father, being within the limits of this commonwealth, has, or hereafter shall, separate himself from his wife, or from his children, or from wife and children, without reasonable cause, or shall neglect to maintain his wife, or children, it shall be lawful for any alderman, justice of the peace, or magistrate, of this commonwealth, upon information made before him under oath, or affirmation, by his wife, or children, or either of them, or by any other person, or persons, to issue his warrant to the sheriff, or to any constable, for the arrest of the person against whom the information shall be made, as aforesaid, and bind him over, with one sufficient surety, to appear at the next court of quarter sessions, there to answer the said charge of desertion."
This Act has nothing to do with the poor laws and is, as it states, for the relief of the deserted wife and (or) children. The cases interpreting this Act have all held that if the prosecution is brought in good faith the residence or domicile of the husband and the wife, or children, has nothing to do with the jurisdiction.
In the case of Commonwealth v. Shetzline, reported in 84 Pa. Super. 100, the Court interpreted the Act as follows:
"The Act of 1867 says nothing about the residence or domicile of the delinquent husband; its only requirement is that he be within the Commonwealth. This means just what it says — his physical presence within the State. If he can be reached by a warrant, it is sufficient to give our courts jurisdiction and compel him to support his wife and children, without regard to his residence or settlement and without reference to where the original desertion or neglect to maintain his family took place: Com. v. Tragle, 4 Pa. Super. 159; Com. v. Hawkins, 80 Pa. Super. 520; Com. v. Plummer, 83 Pa. Super. 26; Com. ex rel. Demott v. Demott, 64 Pa. 305."
To the same effect is the case of Commonwealth v. Plummer, 83 Pa. Super. 26.
With respect to the domicile or residence of the deserted children, the Superior Court, in a recent case of Commonwealth v. Sanders, reported in 111 Pa. Super. 202, held that such residence or domicile had no bearing upon the jurisdiction of the court. In this case the defendant was a resident of Philadelphia and his wife a resident and citizen of New York State and came to the Philadelphia Municipal Court just for the purpose of the action. An order for support was made against him and he appealed on the ground of jurisdiction, the desertion having taken place in New York. The Superior Court sustained the order for support and cited the case of Commonwealth v. Hopkins, reported in 53 Pa. Super. 16, affirmed in 241 Pa. 213, wherein an order for support was sustained against a husband for the support of his wife and children resident in the State of Ohio.
For the reasons above stated, the Court is of the opinion that, the prosecutrix being within this county, where the information was made and the warrant issued in this case, the Court has jurisdiction to make the order as made in this case and, therefore, the rule for a re-hearing should be discharged.
Defendant appealed.
Error assigned, among others, was discharge of rule for rehearing.
Adam B. Shaffer, for appellant.
Richard D. Laird, District Attorney, and George H. McWherter, Ass't District Attorney, for appellee.
Submitted May 7, 1937.
The order appealed from is affirmed on the opinion of the learned President Judge of the court below.