Clarence R. Kramer, Clearfield, E. H. Beshlin, Warren, for appellant.
S. W. Blackman, Warren, Gustav W. Wilde, Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, Jj.
[ 175 Pa. Super. Page 235]
This is an appeal from the order of the Court of Common Pleas of Warren County dismissing the plaintiff's petition to open judgment vacating a divorce decree.
On June 26, 1951, the lower court granted a decree of absolute divorce to Mildred M. Wisor. The defendant, although personally served, had entered no formal appearance and had not appeared at the hearing. At the argument before our court there was considerable discussion as to why the defendant did not appear at the divorce hearing but, since this is a matter which does not aid us in the determination of the questions which dispose of this case, we deem it unnecessary to discuss it.
On December 5, 1951, after the term in which the final decree in divorce was signed, and after the time for appeal had expired, Charles L. Wisor, the defendant, upon petition obtained a rule upon the plaintiff to show cause why the decree should not be vacated.
In the petition he alleged that although the plaintiff testified her residence was 9 Oak Street, Warren, Pa., 'in fact, for approximately one year preceding the date of said hearing, to wit: June 26, 1951, the plaintiff was a resident of the County of Chautauqua and State of New York, and was not a bona fide resident of the County of Warren or Commonwealth of Pennsylvania;' that the court therefore had no jurisdiction in the matter; and that the plaintiff's false testimony concerning her residence constituted a fraud upon the Court. This rule was made returnable January 22,
[ 175 Pa. Super. Page 2361952]
. On January 7, only fifteen days before the return day, the rule was served by the Deputy Sheriff on C. Henry Nicholson, Esq., counsel of record for the plaintiff in the divorce case. Mr. Nicholson immediately wrote to counsel for the defendant stating that he had no idea where Mildred Wisor was and that if counsel for the defendant knew her whereabouts he would like to be informed so that she could be notified of the action.
On the return day, upon motion of defendant's counsel without the taking of any testimony in the matter, the court made the rule absolute and vacated the decree.
On March 20, the plaintiff filed a petition to open the judgment which vacated the divorce decree. In the petition the plaintiff alleged she had no knowledge of the action until March 18; that she had been given no opportunity to answer or defend the rule to show cause why the decree should not be vacated; and that she had a full and complete defense to the allegations made by Charles L. Wisor in his ...