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DULLES v. DULLES ET AL. (01/17/56)

January 17, 1956

DULLES
v.
DULLES ET AL., APPELLANTS.



Appeals, Nos. 26 and 28, Oct. T., 1956, from order of Municipal Court of Philadelphia County, Feb. T., 1955, No. 1176, in case of Frank William Harrison Dulles, a minor, et al. v. Leib Harrison Dulles and Girard Trust Corn Exchange Bank et al. Order reversed; reargument refused March 6, 1956.

COUNSEL

John Kennedy Ewing, 3rd, with him Gordon W. Gabell and Saul, Ewing, Remick & Saul, for appellant.

Edwin P. Rome, with him John Kennedy Ewing, 3rd, for appellants.

Henry T. Reath, with him Benjamin H. Read, Frank K. Tarbox and Duane, Morris & Heckscher, for appellees.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Ervin

[ 180 Pa. Super. Page 600]

OPINION BY ERVIN, J.

In this action, commenced by writ of foreign attachment in the Municipal Court of Philadelphia by the mother and natural guardian of two minor sons against the father and the garnishees, an order of support was sought for the two sons.

Preliminary objections were filed raising, inter alia, the failure to aver in the complaint that the defendant father was a nonresident of Pennsylvania. Thereafter the plaintiff filed a formal request for leave to amend the complaint by amending paragraph 3 by inserting a specific averment that the defendant is not a resident of Pennsylvania. In the opinion, filed after the taking of testimony on the preliminary objections, the court stated: "The Court believes that this amendment should be permitted."

We are of the opinion that this amendment was not allowable and that the failure to aver non-residence in the original complaint was a fatal jurisdictional defect which obliges us to reverse the action of the lower court in which it dismissed the preliminary objections.

The Act of 1836, P.L. 568, § 44, as amended, 12 PS § 2891, and Pa. R.C.P. 1252 both provide that foreign attachment will lie only against a nonresident of Pennsylvania. The only averment in the complaint with reference to the whereabouts of the defendant is set forth in paragraph 3 thereof as follows: "Defendant is Leib Harrison Dulles, whose address is Blonay s/Vevey, Switzerland." A statement setting forth the address of a defendant in a foreign attachment proceeding does not amount to an averment that the defendant is a nonresident of Pennsylvania.

In Kohl v. Lyons, 125 Pa. Superior Ct. 347, 351, 189 A. 498, Judge RHODES, now President Judge, said: "The affidavit of ...


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