Oflesh v. Boulos et al. property of the congregation, which is the owner, but however this may be, it seems to us plain that there is no occasion for a temporary injunction, and that the status quo before the filing of the bill must be maintained until final hearing. The motion for a preliminary injunction is, therefore, refused. And now, March 4, 1925, upon the hearing of the motion to continue the preliminary injunction herein, it is ordered, adjudged and decreed that the injunction heretofore granted be dissolved and that the status quo before and at the time of the filing of the bill herein be restored. From William J. Aiken, Pittsburgh, Pa. Hahn v. Ditchey. Landlord and tenant-Lease-Assignment of lease-Covenant not running with the land. 1. Where a lease provides that the lessor shall pay the lessee a sum stated on the expiration of the lease, and the lessee assigns to another, with the approval of the lessor, all the rights under the lease "to enjoy the privilege during the remaining period of the lease," the lessor is not bound to pay to the assignee the sum stated on the expiration of the lease. 2. In such case, the covenant does not run with the land, and is not covered by the assignment. Question of law raised by affidavit of defence. C. P. Schuylkill Co., Nov. T., 1923, No. 176. J. O. Ulrich, for plaintiff; George Ellis and John F. Whalen, for defendant. KOCH, J., April 27, 1925.-On April 14, 1910, Jacob W. Ditchey and Elizabeth Ditchey, his wife, leased to Fred B. Loch and Annie M. Loch, his wife, a three-story brick hotel in Tamaqua for a term of five years, commencing on April 18, 1910, at a rental of $100 per month. A written lease was executed by all the parties. The lease provides for renewals thereof and for the final surrender of the property. According to the plaintiff's statement, the lease expired on Sept. 18, 1923, and the property was surrendered. Mr. Loch and wife were not tenants when the property was surrendered to the landlord. On a copy of the lease attached to the statement I find the following: "Tamaqua, Pa., November 8, 1912. "I hereby assign, transfer and set over unto George A. Hahn all my right, title, interest, claim and possession to the within stated agreements of said lease so that the said George A. Hahn may have and enjoy the privileges during the remaining period of the lease." And Mr. Ditchey on the same day agreed in writing to the transfer. The lease, inter alia, contains this provision: "And further it is hereby agreed that the said parties of the first part will pay and guarantee to the said parties of the second part the sum of two thousand ($2000.00) dollars on the expiration of this lease upon the surrender of the property and the contents as has been delivered to them, ordinary wear and tear, etc., excepted." Hahn now brings this suit to recover the $2000 referred to in the stipulation just quoted. The question of law raised by the affidavit of defence is that the Covenant quoted above "is a personal covenant, not running with the land, and did not pass to the assignee, George A. Hahn, the plaintiff herein." Plaintiff's counsel conceded at the time of the argument that the provision in the lease creates no covenant running with the land. Nor is it such a covenant, nor does the covenant provide that Ditchey and his wife shall pay to the assigns Hahn v. Ditchey. of Loch, or Loch and his wife, the $2000 referred to. The covenant is that Ditchey and his wife shall pay to Loch and his wife the sum of $2000, whereas this suit is brought by Hahn, who, by virtue of Mr. Loch's assignment, obtained the "right, title, interest, claim and possession" of only Fred B. Loch. But under that assignment from Loch to Hahn, Hahn was to only "have and enjoy the privileges during the remaining period of the lease." The words "privileges during the remaining period of the lease" do not admit of the construction that "on the expiration of this lease upon surrender of the property and the contents thereof" the $2000 shall be paid to Hahn as the assignee of Loch. And now, April 27, 1925, judgment is entered for the defendant. From M. M. Burke, Shenandoah, Pa. Limber's Estate. Divorce-Decree-Validity-Collateral attack-Act of Feb. 8, 1819. 1. The validity of a decree in divorce cannot be attacked collaterally by the party in whose favor and at whose instance it was entered thirty years thereafter for the purpose of establishing a right to participate in the proceeds of the estate of the respondent. 2. The Act of Feb. 8, 1819, 7 Sm. Laws, 151, repealed by Act of May 19, 1897, P. L. 72, was in force in 1893 and provided that no appeal should lie from the final sentence or decree in divorce after one year. Petition to vacate proceedings. O. C. Venango Co., Jan. T., 1924, No. 5. CRISWELL, P. J., June 22, 1925.-On the presentation of the said petition, a rule to show cause was granted, and after due service thereof on Ida E. Limber and hearing thereon, it is found that the said deceased was married to the petitioner, Martha Limber, Sept. 9, 1891; that thereafter, on April 24, 1893, she presented to the Court of Common Pleas of said county her petition for a divorce, and on Sept. 11, 1893, such petition was granted and a decree a vinculo matrimonii in due form was made by the court. Sometime thereafter, the particular date not appearing, the deceased married one Carrie Woods, and to such union three children were born, two of whom, Margaret and Wayne, yet survive. Carrie Woods having died, the deceased, on March 17, 1914, married the respondent, Ida E. Limber, and by her two children were born to him: Marion, aged eight, and Helen, aged six. That the petitioner, from and after the date of the decree obtained by her, regarded herself as freed from the deceased and no longer his lawful wife is not questioned by any proofs offered. On behalf of the petitioner it is claimed that the record of the divorce referred to shows on its face that the court was without jurisdiction in the premises and that the decree was and is void and can be attacked and may be disregarded in another court in this collateral way. Such contention is regarded as being based on a misapprehension of the adjudicated cases on the subject. If it be true that the court was without jurisdiction and such want of jurisdiction appears on the face of the record, the decree may be disregarded. But in Com. v. Barnett, 199 Pa. 161-177, it was said: "Objections to jurisdiction are of two classes, between which there is a clear and well settled distinction: first, those relating to the authority of the court over the subject-matter; Limber's Estate. and, secondly, those relating to its authority over parties. Objections of the first class cannot be waived nor jurisdiction obtained by acquiescence. Thus, if a writ of mandamus had issued from the Quarter Sessions or Orphans' Court, the proceeding would be void ab initio for defect of authority in the court to issue such process and determine such controversies. It is of this class that it is commonly said that consent cannot give jurisdiction. But in the second class the rule is different. The party exempt from jurisdiction may waive his personal privilege, and if he does so, the jurisdiction of the court is complete." In English v. English, 19 Pa. Superior Ct. 586-95, Rice, J., refers to such language as "a clear statement of the distinction between the two classes of objections to jurisdiction." In the earlier case of Miltimore v. Miltimore, 40 Pa. 151-155, it was alleged that the decree was void "because the plaintiff herself caused and procured the subpoena to be issued in vacation and but twelve days before the ensuing term, whereas the act of assembly requires the interval to be at least thirty days." Relative to this, it was said: "This is a novel objection to come from the complainant in that proceeding after a decree in her favor, acquiesced in and acted upon by her for more than seven years and until after her husband's death. But we will not estop her for this reason only, for a better exists, which is that this did not render the decree void, but only voidable, if taken in time and by a party who had a right to object. Where there is jurisdiction of the parties and the subject-matter of the controversy, the judgment or the decree of the court on it is never void but only voidable where irregular. When the jurisdiction does not exist and usurpation takes place, then all the acts of the tribunal are void 'and of none effect' and may be so treated in any collateral proceeding. Where there is no jurisdiction, there is no authority to pronounce judgment, and consequently a judgment so entered is but in form and similitude and has no substance, force or authority. Here the court was one of general jurisdiction. To it belonged the right by statute to entertain proceedings and make decrees in divorce. It also had jurisdiction of the parties. The decree, therefore, entered could only be reversed for error by a direct proceeding for that purpose and not collaterally." On the same subject, further reference is made to Mintz v. Mintz, 83 Pa. Superior Ct. 85, and McDonald's Estate, 268 Pa. 486-489. That the court here had jurisdiction of the cause of action set forth in the petitioner's libel is not, of course, questioned. It had jurisdiction of the respondent, and it is not suggested otherwise. That the entry of the decree prematurely and without proof covering the requisite period of two years were irregularities which would have warranted and required the setting aside of the decree if made in time by a proper person appears clear, but so doing would not be an adjudication that the court did not have jurisdiction to hear and dispose of libels in divorce. The act of assembly limiting the time within which appeals might be taken from decrees in divorce in 1893 appears to have been the Act of Feb. 8, 1819, repealed by the Act of May 19, 1897, P. L. 72. Such act provides: "That no appeal shall lie from the final sentence or decrees of the Court of Common Pleas or other court having competent jurisdiction in cases of divorce after the expiration of one year from the time of pronouncing the said final sentence or decree." Without considering the question of estoppel arising from the petitioner's failure to question the decree in her favor for a period of thirty years, during which the respondent in such case had twice remarried and begotten children, and not then until after his decease, and that only for the purpose of securing Limber's Estate. a part of his estate, as well as other questions raised at the hearing and argument, it is concluded that the prayer of the petition should be refused and the petition dismissed, at the cost of the petitioner. The petitioner cannot in this collateral way attack the decree made thirty years ago in her favor and at her instance. It follows from the conclusion indicated that much of the testimony taken at the hearing is incompetent, irrelevant and immaterial. And now, June 22, 1925, after hearing and for the reasons given, the prayer of the petition of the petitioner is refused and the petition is dismissed, at the cost of the petitioner. From George S. Criswell, Jr., Franklin, Pa. Hugg's Estate. Wills-Probate-Revocation of letters-Register of wills—Act of June 7, 1917, P. L. 415. 1. It is improper practice to petition the Orphans' Court to revoke letters of administration granted by the register of wills. 2. The proper practice is to apply to the register to revoke and to appeal to the Orphans' Court if he refuses. Petition to the Orphans' Court to revoke letters of administration granted by the register. O. C. Centre Co. Spangler & Walker, for petition; John G. Love, contra. POTTER, P. J., 17th judicial district, specially presiding, Aug. 10, 1925.— This is a petition addressed to the Orphans' Court, asking for the revocation of letters of administration granted by the register of wills in the estate of the above named decedent. In the disposition of this petition, upon which a rule was duly granted, it is not necessary for us to go into the merits of the controversy, as it is very plain that these proceedings should have been begun before the register, which was not done, and from whose decision an appeal lies to the Orphans' Court. Section 5 of the Register of Wills Act of June 7, 1917, P. L. 415, provides: "Any register of wills shall have power to revoke letters af administration granted by him whenever it shall be made to appear to him that such letters have been granted to, or on the nomination of, persons who are not the next of kin of the decedent entitled to administer. . . .” This act plainly points out the original jurisdiction in which these proceedings should be begun. And an appeal from the decision of the register lies to the Orphans' Court: Wehry's Estate, 47 Pa. C. C. Reps. 486; Sharpless's Estate, 28 Dist. R. 746. These expressions are based upon the construction of the Act of June 7, 1917, P. L. 415; but even before the passage of this act, it was held that the register had original jurisdiction of a petition to revoke letters of administration: Dundas's Estate, 15 Dist. R. 90; Sudam's Estate, 3 W. N. C. 305; Farrell's Estate, 1 W. N. C. 15; Potts's Estate, 37 Legal Intell. 182. We are not attempting to in any way pass upon the merits of the petition or the answer to it. This is, in the first instance, wholly the function of the register. Should an appeal be taken from his disposition of the matter as a probate judge, the Orphans' Court will then have full jurisdiction. And now, to wit, Aug. 10, 1925, in accordance with our expression herein contained, the rule is discharged and the petition is dismissed. From Charles P. Ulrich, Selinsgrove, Pa. Diamond Textile Machine Works, Inc., v. International Batting Mills. Assignment of part of claim against individual-Notice to debtor-Right of debtor to have issue framed to determine validity of assignment—Practice, C. P. An assignment of a part of a claim against an individual will be sustained, and on the assignment's being called to the attention of the court by the affidavit of defence, the court will make absolute a rule for judgment against the debtor (defendant in case at bar), and stay the execution for fifteen days, with leave to him to petition the court within that time for leave to pay into court the part of the claim assigned with interest and to frame an issue between the assignor (plaintiff in case at bar) and the assignee as to who is entitled thereto. Rule for judgment for want of a sufficient affidavit of defence. C. P. No. 1, Phila. Co., Dec. T., 1924, No. 857. U. S. Koons, for plaintiff; Morris & Kirby, for defendant. J. S. Clark, for garnishee. TAULANE, J., Dec. 30, 1925.-This is a rule for judgment for want of a sufficient affidavit of defence. The plaintiff seeks to recover from the defendant commissions for selling machinery. The agreement for commissions is in writing, and under its terms the commissions are payable to the plaintiff. The defendant denies liability on the ground that the commissions are not payable to the plaintiff alone, but jointly to the plaintiff and one A. J. Mellman. The affidavit of defence sets up this defence, as follows: "Deponent is informed by one A. J. Mellman, believes and, therefore, avers, that the purchasers, A. Lippman and Louis Silverstein, trading as Camden Fibre Mills, were obtained as purchasers of the machinery from defendant by the said plaintiff and A. J. Mellman jointly; that in said transaction said A. J. Mellman and the plaintiff were working in joint enterprise; that the transactions and agreements with defendant relative to the said sale and payment of commissions, etc., were made with the defendant by the plaintiff (by and through one H. B. Lincoln, then and there duly authorized in that regard on behalf of the plaintiff and said A. J. Mellman); that any moneys due and payable by way of commission or otherwise, as result of said transaction and sale referred to and set forth in the plaintiff's statement of claim are due and payable to the parties with whom the defendant dealt and contracted, to wit, the plaintiff and said A. J. Mellman jointly; that the defendant is not obligated to or indebted directly or solely to the plaintiff for the moneys claimed in this proceeding." It is not alleged that A. J. Mellman was either the principal or partner of the plaintiff; it is simply averred that they were working in "joint enterprise." No one can sue for the breach of a contract who is not a party to the contract (Dicey on Parties to Actions, 2nd ed., 94; 1 Chitty on Pleadings, 2, and Kountz v. Holthouse, 85 Pa. 235, 237), except generally where the contract is made by an agent for an undisclosed principal or by a partner on behalf of his firm. Neither of these situations is present here. The defendant has no right to insist that suit be brought in the joint names of the plaintiff and A. J. Mellman. The mere fact that the plaintiff and A. J. Mellman were engaged in "joint enterprise" in no way changes the contractual relations of the plaintiff and defendant. The arrangement between the plaintiff and A. J. Mellman was to share the commissions, and this amounted VOL. 7-8 |