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Boudwin v. Boudwin

February 21, 1939

BOUDWIN
v.
BOUDWIN ET AL.



Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Albert B. Maris, Judge.

Author: Kalodner

Before BIGGS and CLARK, Circuit Judges, and KALODNER, District Judge.

KALODNER, District Judge.

This is an appeal from the order of the court below dismissing the bill of complaint upon preliminary objections thereto.

The bill sought to enjoin the appellees from acting in accordance with a decree of the Common Pleas Court of Delaware County, in the Commonwealth of Pennsylvania.

The basis of the appellant's complaint is two-fold, (1) that the enforcement of the decree of the Delaware County Court would deprive him of his property without due process of law, and (2) that the Delaware County Court had neither right nor power to make the decree.

This court may not concern itself with the second contention. The question of whether the decree of the County Court is in accord with the Pennsylvania statutes and decisions is one for determination by the Pennsylvania Courts unless the abridgment of a right issued to the appellant by the Constitution of the United States is involved. Plainly, this is not the case.

The question subject to our adjudication therefore is whether the appellant is being deprived of property without due process of law by the action of the County Court, either because proceedings resulting in disposition of his property have taken place in Pennsylvania without such service as would meet the requirements of due process or for some other reason.

The determination of this question requires a review of the proceedings in the State courts.

Mary Alice Boudwin, appellee, and wife of the appellant, filed her bill in equity in the County Court against the appellant, then a non-resident of Pennsylvania, seeking to invoke remedies provided by State Acts against the appellant's property, real and personal, located in Delaware County, Pennsylvania, and praying the court to direct a seizure and sale, or to mortgage sufficient of the estate to provide funds for her support.

Subsequently, the wife petitioned the County Court to direct that extra-territorial service of process and of the bill be made on the husband as provided for in another Pennsylvania statute - the Act of April 6, 1859, P.L. 387, Section 1, 12 P.S. ยง 1254. The County Court granted the prayer of the petition and entered a decree directing that service be made upon the husband wherever found. Subsequently, an affidavit of service was duly filed.

The husband thereupon appeared in the County Court de bene esse with a petition to set aside the service. The prayer of the petition was dismissed and an order made directing the husband to appear and answer. Instead, he appealed from that order to the Supreme Court of Pennsylvania.

The latter court set aside the County Court's order directing the appellee to appear and answer, upon the ground that the order was unwarranted, and that the County Court had no power to order an appearance and answer: holding that the proceedings in the County Court were in rem, and that the husband might ignore the notice of the proceedings at his pleasure. The Supreme Court further held that the bill in equity filed in the County Court was insufficient in formal respects, because it had failed to set forth a specific description of the property mentioned therein. The opinion of the Supreme Court concludes in this fashion (Boudwin v. Boudwin, 320 Pa. 147, 150, 182 A. 536, 538):

"The property of the defendant which the court is asked to seize must be specifically set forth in the bill. This matter was not adverted to in the court below and for that reason we shall not direct the dismissal of the proceeding. We authorize the court below to permit plaintiff to amend in ...


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