McFadden et ux. v. Stamm.

and opprobrious language to the attorney for the plaintiff when he was endeavoring to collect the judgment, the discharge should not be granted.

A hearing was had, and the notes of testimony disclose that the defendant operates a small automobile repair shop at No. 1442 Vernon Street, previously at No. 123 South 13th Street; that personal property therein consists of tools, lamps, wires, etc., is worth about $100; that he has book accounts or bills collectible to the amount of about $200; that he has insurance policies, the cash surrender value of which is about $150, making a total amount of assets of approximately $450; that his debts, not including this judgment, are $2459, but including the judgment, which is $1826.50, amount to $4285.50. There is no objection in the answer to the verity of the statements contained in the petition as required by section 1 of the act above mentioned, nor was any objection made at the hearing that notice of this proceeding to all of the creditors of the defendant had [not] been given.

It has frequently been decided that under the provisions of the act above cited, the court may exercise its discretion and consider the character of the testimony which resulted in the judgment.

In the case of Matz v. Haug, 80 Pa. Superior Ct. 583, it was decided that the court may exercise its discretion and discharge the defendant if the facts warrant such action, or it may refuse, etc., and it may take into consideration the character of the action in arriving at its conclusion. See, also, In re Petition of John Ostrowske, 79 Pa. Superior Ct. 311.

At the hearing, the defendant produced all books and papers required of him and gave full information of all his assets. It also appeared that the petitioner is without means or property with which to pay the judgment, and that he has not secreted or assigned any of his property so as to avoid payment of the judgment. He is thirty-one years of age, has a wife and four young children, and although his conduct in the use of language to the attorney for the plaintiffs was very disrespectful and unbecoming, yet we fail to see how anything can be gained by keeping the defendant in prison for the period of sixty days. That probably would mean the breaking up of his patronage and arresting his support of his wife and children, and the results to them, at least, would be direful. From the evidence in the case it is impossible for the defendant at this time to pay the plaintiffs' judgment and the imprisonment of the defendant would give to the plaintiff nothing, except perhaps satisfaction in having him in prison.

As expressing our feeling in this case, we quote what Judge Whitten said in part in the case of Sublinsky v. Morosky, 11 West. 176: "For the present, it seems proper that the defendant be discharged from arrest upon the present writ of ca. sa., to the end that he may immediately support his family and later pay his just debts. The defendant should, however, pay the costs incident to the writ of ca. sa, at the above number and term."

Counsel for the defendant in the judgment, although the question is not raised in the petition, at the argument of the case contended that the case upon which this judgment was obtained is a case to which the Act of June 16, 1836, P. L. 729, is not applicable, citing Doescher's Petition, 18 Pa. Superior Ct. 346, as his authority therefor. Under the pleading in the case, and in the light of what we have already said, we do not think it is necessary for us at this time to pass upon this contention.

And now, Aug. 5, 1925, the rule is hereby made absolute and the petitioner is directed to pay the costs incident to the writ of capias ad satisfaciendum issued to the above number and term.

From George R. Barnett, Harrisburg, Pa.

Purman v. Purman.

Divorce-Trial by jury—Appointment of master-Acts of March 13, 1815, and May 8, 1919.

1. Since the Acts of March 13, 1815, P. L. 150, and May 8, 1919, P. L. 164, trial by jury in divorce is not a matter of right, but rests in the sound discretion of the court to grant or refuse, unless it would be prejudicial to public morals, in which event the court has no discretion, but must refuse such trial.

2. The practice of appointing masters in divorce will not be departed from unless some special reason is shown why the issue should be tried by a jury.

Divorce-Alimony pendente lite-Counsel fee and expenses.

3. Alimony pendente lite is not a matter of right but is addressed to the sound discretion of the court and the court may refuse it where cause against it is shown.

4. The controlling element in granting an allowance in any case is the wife's necessity for it, the husband's ability to pay and all the circumstances of the particular case.

5. The destitute condition of the wife is a necessary prerequisite to an order for alimony pendente lite. Her want of pecuniary ability must be shown affiirmatively before an order will be made.

6. The husband's ability to pay must be shown and not presumed, and if the husband's means are limited, the amount allowed will necessarily be limited.

7. Where a husband, a respondent in a libel for divorce for desertion, has provided a suitable home for his wife, and repeatedly requested her to accompany him to it, and she has always refused, she will not be granted alimony pendente lite.

8. Doubted, whether a deserted wife can require her husband to support her while she is residing in another state.

9. Under the circumstances of this case the respondent is allowed $150 for counsel fees.

Libel in divorce. C. P. Greene Co., March T., 1925, No. 125.

A. A. Purman and James J. Purman, for libellant.

Challen W. Waychoff and Roy J. Waychoff, for respondent.

RAY, P. J., Nov. 23, 1925.—In this case two rules have been submitted to and are to be determined by the court: 1. A rule upon the part of respondent for a trial by jury. 2. A rule upon the part of respondent for alimony pendente lite and counsel fees.

In addition, libellant has, in response to the rule for trial by jury, petitioned for appointment of a master with the usual powers. No good purpose will be served by a separate treatment of these several applications; they will, therefore, be disposed of in a single opinion.

Application for trial by jury.

The libellant and respondent were married at Waynesburg, Pennsylvania, on June 24, 1921, and lived and cohabited together until July 28, 1923, at which time libellant alleges the desertion complained of occurred.

On Jan. 26, 1925, the petition or libel of the libellant was filed to the above number and term, upon which a subpoena issued, returnable to the first Monday of March, 1925, which was returned by the sheriff under oath non est inventus and filed March 3, 1925.

On March 3, 1925, libellant presented a petition to the court and obtained an order awarding an alias subpoena in divorce, returnable to the first Monday of June, 1925, and which alias subpoena was returned by the sheriff under oath non est inventus and filed June 2, 1925.

On June 9, 1925, libellant presented his petition to the court and obtained an order of publication directed to the Sheriff of Greene County, calling

Purman v. Purman.

upon the respondent to appear and answer the libel and complaint of libellant on or before the first Monday of September, 1925. The proclamation was published according to law and marked copies mailed respondent at her last known address in Atlantic City, New Jersy. Return to the order of publication was made by the sheriff under oath and was filed Sept. 8, 1925.

On Aug. 19, 1925, respondent filed an answer to the libel. On Sept. 7, 1925, libellant filed a replication, to which the respondent on Sept. 24, 1925, filed an answer. On Sept. 25, 1925, the respondent filed her petition and obtained a rule to show cause why the issue should not be tried by a jury, returnable to Nov. 2, 1925, and at the same time she filed a petition and obtained a rule to show cause why libellant should not pay respondent a sufficient sum for her support during the pendency of the action, and a further sum of $500 for costs, expenses and attorney's fees, returnable Nov. 2, 1925.

On Sept. 25, 1925, libellant filed a petition, praying the court to appoint a master to take the testimony and return the same to the court, together with a report of the proceedings had before him and his opinion of the case.

On Sept. 25, 1925, libellant filed his answer to respondent's petition and rule for jury trial, and on Oct. 26, 1925, libellant filed his answer to respondent's petition for alimony pendente lite and counsel fees.

On Nov. 2, 1925, counsel of the parties in interest agreed to and fixed Nov. 23, 1925, as the time for the argument of the matters raised by the pleadings, namely, the rule for jury trial, the rule for alimony pendente lite and counsel fees and the appointment of a master.

On Nov. 23, 1925, the matters were submitted to the court.

In the answer of respondent to the libel and in respondent's petition for rule for jury trial she has denied that she deserted the libellant. Libellant, in his petition for the appointment of a master and in his answer to respondent's petition and rule for jury trial, re-avers that respondent deserted him, and attached to and made a part of libellant's answer to respondent's petition and rule for jury trial is a certified copy of the record at No. 36, December Sessions, 1923, in the Court of Quarter Sessions of Greene County, Pennsylvania, a proceeding instituted upon the information of respondent against libellant for desertion and non-support. Counsel for respondent offered in evidence the records and testimony in that proceeding in submitting the present matters to the court. Thus, both libellant and respondent are content that the court may, in determining the matters now before us, consider the testimony taken in the proceeding in the Quater Sessions.

In the action at No. 36, December Sessions, 1923, in the Court of Quarter Sessions of Greene County, Pennsylvania-Commonwealth of Pennsylvania v. Ralford B. Purman-the facts relied upon in this action by libellant and respondent were largely developed. The court is familiar with the facts developed in that action.

Respondent, in her pleading filed in this action, has brought into the issue extraneous matter; has brought into this action the lives and characters of parties named therein, and by innuendo and by inference she has brought into this action the lives and characters of parties unnamed, and has alleged matters, the full development of which in a trial by jury libellant avers would prejudice public morals and corrupt the same.

The Act of May 8, 1919, § 1, P. L. 164, which act amends section 2, Act of March 13, 1815, P. L. 150, in part provides:

"But either of the parties who shall desire any matter of fact that is affirmed by the one and denied by the other to be tried by a jury may take a

Purman v. Purman.

rule upon the opposite party to be allowed by a judge of the Court of Common Pleas to show cause why the issue of fact set forth in the said rule shall not be tried by a jury, which said rule shall be served upon the opposite party or his or her counsel.

"Upon the return of said rule, after hearing, the court may discharge it or make it absolute, or frame the issue itself, and only the issues as ordered by the court shall be tried accordingly; but such rule shall not be made absolute when, in the opinion of the court, a trial by jury cannot be had without prejudice to public morals."

The act above quoted does not restrict the court in refusing an issue if the facts prejudice public morals, but is a limitation upon the granting of such issue. Trial by jury in divorce is not now a matter of right, but rests in the sound discretion of the court to grant or refuse it, unless trial by jury would be prejudicial to public morals, in which event the court has no discretion, but must refuse such trial by jury.

In Renard v. Renard, 60 Pa. Superior Ct. 386, it was held:

"It is argued that the only reason which may move the court to refuse an issue under the Act of 1911 is that the public morals might be prejudiced by a trial by jury. We cannot agree with this view. If we refer to the sentence quoted above, we find that the power is put in the hands of the court to grant or refuse an issue, but with the condition that an issue shall not be granted when the public morals might be prejudicially affected. The provision is not to restrict the court in refusing an issue, but is a limitation on the granting of one. The sentence is rather inaptly framed, but, as we read it, it means that the trial judge may in any case grant or refuse an issue at his discretion, except where the public morals will be prejudiced by a jury trial, in which case he shall refuse it. His discretion is not confined to the single question of the effect of a jury trial upon the public morals. There might be other matters which might render a jury trial inadvisable. The reason given by the trial judge that no good purpose could be accomplished by sending the case to a jury may have been intended to express the opinion that the public morals might be prejudiced by a trial by jury. As, however, we have construed the act to vest a general discretion in the court to allow or refuse a jury trial, we need not discuss the question.

"We conclude that the court had the right, in its discretion, to refuse a jury trial."

In the case at bar the testimony in the case between respondent and libellant at No. 36, December Sessions, 1923, is before the court and is made a part of the record by counsel for both libellant and respondent for the purpose, we presume, of being considered by the court in connection with the pleadings filed in this action in disposing of the rule for jury trial. We are familiar with the testimony in that action, and, after reading the testimony in connection with the pleadings filed in this action, we are convinced that no good purpose will be accomplished by sending the case to a jury; that a trial by jury cannot, in the opinion of the court, be had without prejudice to public morals.

Further, this court has adopted the practice of appointing masters in divorces, and that practice will not be departed from unless some special reason is shown why the issue should be tried by a jury, and no such reason has been assigned.

Wherefore, we are of the opinion that the rule for trial by jury should be discharged, and if counsel for libellant and respondent will agree upon a master, we will appoint one at once, and on failure of counsel to agree, we

Purman v. Purman.

will appoint a master without delay, to the end that the case may be proceeded with to a speedy determination.

Alimony pendente lite and counsel fees.

Respondent has obtained a rule on libellant to show cause why he should not be required to pay her a sufficient sum of money for her support during the pendency of this action, and the further sum of $500 for costs and expenses and attorney fees. In other words, she seeks alimony pendente lite and counsel fees. The rules governing the allowance of alimony pendente lite are, for the most part, applicable to allowances for expenses and counsel fees, and [allowances] may be withheld for either purpose upon the same ground. The general rules in divorce proceedings relative to the granting of alimony pendente lite and counsel fees and expenses may be briefly stated as follows: Alimony pendente lite is not a matter of right, but is addressed to the sound discretion of the court, and the court may refuse it where cause against it is shown.

The controlling element in granting an allowance in any case is the wife's necessity for it, the husband's ability to pay and all the circumstances of the particular case.

The destitute condition of the wife is a necessary prerequisite to an order for alimony pendente lite. Her want of pecuniary ability must be shown affirmatively before an order will be made.

The husband's ability to pay must be shown and not presumed, and if the husband's means are limited, the amount allowed will necessarily be limited. In the case at bar, has cause been shown which would justify the court, in the exercise of sound discretion, in refusing alimony, counsel fees and expenses? Has the destitute condition of the wife, her want of pecuniary ability, been affirmatively shown? Has the husband's ability to pay been shown or is the husband's ability to pay merely presumed?

In Horst v. Horst, 18 Lanc. Law Rev. 14, Landis, J., said: "In the present case, the respondent, at April Sessions last, appeared as a prosecutor against her husband, the libellant, alleging that he had deserted her, and asking the court to make an order for her maintenance. She testified that he had not lived with her for five years, had had no intercourse with her during that time, and had done nothing for her support. On cross-examination, she, however, admitted that during that period three children were born to her, and that she was then pregnant. Of course, under such circumstances, we dismissed the complaint. Having heard her former testimony, we are not prepared to believe her present story, and we, therefore, in accordance with the above rule of law, refuse to grant alimony."

The rule of law to which reference is made is stated in the syllabus as follows:

"The general rule in divorce proceeding is that the destitute wife, whether libellant or respondent, is entitled to alimony pendente lite, counsel fees and expenses, within the sound discretion of the court.

"Such alimony is not of right and will be refused where cause against it is shown, such as the wife being guilty of adultery or such notorious misconduct as to warrant a refusal of support."

In O'Hara v. O'Hara, 12 Pa. C. C. Reps. 603, the syllabus reads: "The application of the wife for alimony pendente lite is addressed to the sound discretion of the court, and whether she is entitled to an allowance depends on the circumstances of the case.