Appeal, No. 174, Oct. T., 1956, from order of Court of Common Pleas of Lycoming County, in case of Emile Faivre v. Alice Parker Faivre and John C. Gault, her guardian. Order reversed.
Clyde E. Williamson, with him Williamson & Cupp, for appellant.
No argument was made nor brief submitted for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).
[ 182 Pa. Super. Page 366]
This is an appeal by plaintiff, Emile Faivre, from the dismissal of his complaint for annulment of a bigamous marriage.
Although our review of this matter, as in a divorce proceeding, involves the exercise of our independent judgment upon the whole record (Fitzpatrick v. Miller, 129 Pa. Superior Ct. 324, 330, 196 A. 83) the only question on this appeal is a legal one. The facts are undisputed, and are set forth in a statement of the case under Rule 41 of this Court. It appears that defendant, then known as Alice Josephine Parker, was married to one Ralph L. Dettling on July 4, 1945, in Williamsport, Lycoming County, Pennsylvania, and that this marriage has subsisted to the time of this proceeding. On February 19, 1955, by virtue of a marriage license obtained upon application in Clinton County, Pennsylvania, the said Alice Josephine Parker purportedly married the plaintiff before a justice of the peace in Trout Run, Lycoming County, Pennsylvania. On April 6, 1955, the Court of Quarter Sessions of Lycoming
[ 182 Pa. Super. Page 367]
County determined that Alice Parker Faivre was mentally ill and of criminal tendency; she was thereupon committed to the Danville State Hospital, Danville, Pennsylvania. On April 26, 1955, plaintiff filed his complaint for annulment of the marriage on the ground of bigamy; and the court appointed a member of the bar to act as guardian ad litem of Alice Parker Faivre in this proceeding. After hearing, the master appointed by the court filed his report in which he recommended that a decree of annulment be entered as prayed for in the complaint. Exceptions which were filed by the guardian ad litem to the master's report were sustained by the court below which held that as a matter of law an annulment could not be obtained as long as the defendant remained insane. This appeal by plaintiff followed. We have the benefit of a brief from appellant, but the guardian, recognizing that the question involved is one of law, has elected to rely on the opinion of the court below.
Appellant's complaint was filed under section 12 of The Divorce Law, Act of May 2, 1929, P.L. 1237, as amended, 23 PS § 12, which provides: "In all cases where a supposed or alleged marriage shall have been contracted, which is absolutely void by reason of one of the parties thereto having a spouse living at the time of the supposed or alleged marriage, or, if, for any other lawful reason, the said supposed or alleged marriage was absolutely void when contracted, such supposed or alleged marriage, may, upon the application of either party, be declared null and void, in accord with the principles and forms hereinafter prescribed for cases of divorce from the bond of matrimony." If the question of defendant's insanity was not involved, appellant obviously would have been entitled to a decree of annulment on the stated facts. The purported
[ 182 Pa. Super. Page 368]
marriage was entered into while defendant's husband, Ralph L. Dettling, was alive and the parties undivorced. Sharpe v. Federal Window and Office Cleaning Co., 144 Pa. Superior Ct. 231, 243, 19 A.2d 509. The court below concluded, however, that the insanity of defendant precluded any annulment because of an anomaly in The Divorce Law. Section 18 of the Law, 23 PS § 18, provides: "In cases where a spouse is a hopeless lunatic, or non compos mentis, the courts of common pleas shall have jurisdiction to receive a petition or libel for divorce in which such lunatic or person non compos mentis is made the respondent, but only for a ground provided for in section ten of this act. The proceedings, except as otherwise expressly provided in this act, shall, in such cases, be the same as in other proceedings for divorce." The court reasoned that - since section 12 provides that annulment proceedings are to be "in accord with the principles and forms hereinafter prescribed for cases of divorce from the bond of matrimony," and ...