Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

ANDERSON ESTATE (01/05/53)

January 5, 1953

IN RE ANDERSON ESTATE


Appeal, No. 225, Jan. T., 1952, from judgment of Court of Common Pleas No. 2 of Philadelphia County, June T., 1926, No. 5546, in the Matter of Sadie M. Anderson. Judgment affirmed.

COUNSEL

Leslie Pinckney Hill, 2nd, with him E. Washington Rhodes, for appellant.

Harry R. Back, with him Back & Levy, for appellee, was not heard.

Before Stern, C.j., Stearne, Jones, Bell and Chidsey, JJ.

Author: Gordon

[ 372 Pa. Page 352]

The facts are stated in the opinion by GORDON, JR., P.J., of the court below, as follows:

This case was before us upon a petition to set aside a decree declaring the petitioner's deceased wife a feme sole trader, which was entered for us by the Honorable THOMAS D. FINLETTER, sitting in the Summer Court, on July 19, 1926. At that time the wife was represented by the firm of Ladner and Ladner of this City. The ground on which the present petition to set aside the decree is based is an allegation that it was secured by fraud, in that no proper service was made upon the petitioning husband, who was in fact ignorant of the proceedings and hence, that the Court was without jurisdiction to enter the decree. Service of a petition for a certificate to act as a feme sole trader depends upon the provisions of the Act of May 4th, 1855, P.L. 430, which prescribes that service shall be made upon the husband in such manner as the Court shall direct. Under this Act, it has been held by both our Superior and Supreme Courts that service by publication is sufficient to bring the respondent husband within the jurisdiction of the Court: Jordan's Petition, 331 Pa. 270; In re Petition of Leakadia Cheska, 90 Pa. Superior Ct. 410. The service in this case by advertisement was, in itself, sufficient notice to the husband of the presentation of the petition to bring him within our jurisdiction. The record shows, however, that in addition

[ 372 Pa. Page 353]

    to that service, due proof of which was filed in the case, Judge FINLETTER also directed service to be made upon him by registered mail at his then place of residence in Wilmington, Delaware. That service was made, as shown by the registered return receipt of the husband's landlady, which was also filed of record in the case. The proper service of such a notice presumes conclusively that the person to whom it is addressed actually received it.

The defense set up by the husband in this case that he did not actually know the proceedings had been instituted, merely because a person properly served did not deliver the notice to him, cannot justify our setting aside the decree entered upon it. The service was as binding upon him as if he had been personally served with the process. He will not be heard to say that he was ignorant of the pendency of the litigation to which the service referred. To hold otherwise would nullify the well known and established principles governing the effect of service by advertisement or at a person's place of residence or business, and would open the door to the invalidation of all services except those that are personally made, upon the mere assertion that the one to whom they are addressed never received them, and was ignorant of their contents.

As to the service by registered mail, the petitioner's depositions were directed to an attempt by him to show that he never actually received the notice, which was so served. His own evidence was so conflicting and so feeble that, looking at it as a whole, we were unable to conclude that he did not receive the notice which was mailed to him. However that may be, his attempt to show that the person who signed for the notice did not live in the house and was not his landlady was thwarted by the evidence of her husband, who established

[ 372 Pa. Page 354]

    her existence as the mistress of the house at the time the registered return ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.