Opinion
May 22, 1944.
June 30, 1944.
Courts — Jurisdiction — Preliminary determination — Residence of defendant — Enjoining divorce action — Injunction — Procedural violations — Appellate review — Act of March 5, 1925, P. L. 23.
1. An order discharging a rule, under the Act of March 5, 1925, P. L. 23, for a preliminary determination of the jurisdiction of the court, in a proceeding in equity brought by a wife, a resident of Pennsylvania, to restrain her husband from prosecuting an action against her in the State of Nevada, was affirmed on appeal, where it appeared that, although no personal service was obtained on defendant, at the time of service of the bill his legal residence was within the jurisdiction of the court, and the service made was regular and in accordance with the requirements for serving an absent resident. [134-7]
2. The Act of 1925 deals only with the preliminary determination of jurisdictional questions. [137]
3. In a proceeding under the Act of 1925 to determine preliminarily the jurisdiction of the court, an injunction may not be set aside on the ground of failure of the plaintiff to file the bond required by law in case of an ex parte injunction. [136-7]
Argued May 22, 1944.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and HUGHES, JJ.
Appeal, No. 183, Jan. T., 1944, from order of C. P. No. 2, Phila. Co., June T., 1943, No. 1235, in case of Susanne Elliott Janney v. John B. Janney. Order affirmed.
Bill in equity.
The facts are stated in the opinion by GORDON, P. J. of the court below, as follows:
This bill in equity is brought by a wife, a citizen and resident of Pennsylvania, to restrain her husband from prosecuting an action against her for divorce in the State of Nevada. The complainant alleges in her bill that in order to prosecute the action in that State the defendant wrongfully attempted to set up a false, fraudulent and pretended residence therein, and that his true residence is at 2601 Parkway, an apartment house in the City of Philadelphia. The bill and preliminary injunction, granted by us on ex parte affidavits, were served upon the defendant at his residence in this city, and the service made was regular, valid and effective, if the husband's true residence is here. After the service of the bill the defendant, in violation of the terms of the injunction, continued his action in Nevada, and on July 7, 1943, secured a decree of divorce from the plaintiff in that State. The defendant then entered an appearance by counsel de bene esse in these proceedings, and filed a petition, on which we granted a rule to show cause, under the Act of March 5, 1925, P. L. 23, for a preliminary determination of our jurisdiction over him, claiming that he had abandoned his residence in this city on April 19, 1943, that his legal residence was in Nevada when service was made here on June 23rd, and hence that we are without jurisdiction to entertain the proceedings in the absence of actual personal service of the bill upon him. Depositions consisting primarily of evidence given by the defendant himself were taken in support of the petition, and after argument before the Court en banc, we entered the following order discharging the rule: "Being of opinion from the pleadings and depositions that the defendant was a citizen of the City of Philadelphia at the time of the service of the bill in this case and that the service of process in this case was lawful and effective and that the Court has jurisdiction of the cause of action and of the parties, rule discharged."
The principles of law governing this jurisdictional question are fully discussed in the case of Meng v. Meng, 47 Pa. D. C. 429, decided by us on July 7, 1943, and the conclusions there reached are controlling in the present case in view of our factual finding that the defendant's true residence when the bill was served was in the City of Philadelphia. We do not think it is necessary at this time, therefore, to enter upon a re-discussion of those principles, especially as they were substantially upheld, and the law of the subject settled, by the Superior Court in the comprehensive opinion of KENWORTHEY, J., in Commonwealth ex rel. Esenwein v. Esenwein, 153 Pa. Super. 69, handed down on July 16, 1943, a few days after the rendition of our decision in the Meng case.
Upon the controlling question of fact in the case, namely, the residence of the defendant, his own testimony overwhelmingly establishes that, at the time of the service of the bill, his legal residence was at 2601 Parkway in the City of Philadelphia. While he repeatedly asserted in his testimony that he went to Reno, Nevada, with the intention of changing his permanent residence to that city, all the facts and circumstances to which he testified refute that assertion, and clearly demonstrate its falsity. His business is and always has been here, both before he went to Nevada and since he returned, on the very day he secured his decree of divorce in that State. After reaching Reno, he stayed there only the few weeks required by its laws for initiating a divorce action. During all the time he was there he continued to maintain, in full operation, the apartment in this city which he admits was his home and residence before he went to Nevada, and to which he returned on July 7th with a divorce decree in his pocket as the sole apparent token of his sojourn in Nevada. His plainly disingenuous reference to a nebulous new business which he claims to have contemplated starting in the west, but which never materalized, his dissembling efforts to purchase a home there, which he never bought, and his many other deceptive activities while in Reno, all reveal the deliberate falsity of his asserted intention to remove his permanent residence to that city.
Indeed, his testimony in the divorce case on which the Nevada Court predicated its finding that he was a bona fide resident of that State, and which was offered in evidence in this proceeding, reveals, when read in the light of his subsequent conduct, his utter unreliability as a witness to his own intentions. After reciting the dates and various addresses at which he lived in Reno, his entire testimony upon the subject of his residence in Nevada was as follows: "Q. When you came to Nevada on April 17, 1943, was it your intention to make Nevada your home for an indefinite period of time? A. Yes. Q. Is that still your intention? A. Yes."
Immediately after this testimony was given on the morning of July 7th the final decree was handed down, and before the same day's sun had set, the man who had thus solemnly sworn to an intention to make Reno his permanent home, shook its dust from his feet and boarded a train for Philadelphia, where he returned to his apartment, 2601 Parkway, and resumed his business here. In such circumstances it is impossible to believe that his visit to Nevada was for any other purpose than to secure a divorce from his wife, or that he ever intended to remove his residence to Nevada. The service of the bill, was, therefore, good and subjected him to our jurisdiction.
Apart from the jurisdictional question raised by the petition before us, it also prays for an order setting aside and vacating the injunction served contemporaneously with the bill, because of the failure of the plaintiff to file the bond required by law in cases of ex parte injunctions. This latter prayer, which raises a procedural question going, not to the jurisdiction of the court, but to the regularity and validity of the injunction, is not cognizable at this time, since the Act of 1925 under which the petition was filed, deals only with the preliminary determination of jurisdictional questions. Appearances de bene esse are no longer recognized by our practice, except as they may be specially authorized by law for a limited purpose, such as that of challenging the jurisdiction of a court. Once we have acquired jurisdiction of the cause of action and of the parties, our interlocutory processes can be impeached only after a general appearance in which the party questioning them recognizes and submits himself to our jurisdiction. Of course, if we had not acquired jurisdiction by lawful service of the bill, the injunction would have fallen with the whole proceeding. Since we have, however, the defendant must come in by a general appearance before he can challenge the regularity of our mesne processes. In addition, having ignored the mandate of our injunction by continuing his action in Reno in violation of its terms, we think the only proper method available to him for questioning its validity, if he elects not to enter a general appearance in the case, is through a defense to a proceeding for contempt, in which, if the injunction is found to be irregular and invalid for want of an injunction bond, as alleged, the defendant's failure to obey it would be justified, and he would be absolved from liability for contempt.
It was for the foregoing reasons that we discharged the rule for a preliminary determination of our jurisdiction.
Defendant appealed.
Joseph D. Morelli, for appellant.
George E. Letchworth, Jr., for appellee.
The order of the court below is affirmed on the opinion of President Judge GORDON, costs to be paid by the appellant.