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MAGISTRO v. MAGISTRO. (12/28/56)

December 28, 1956

MAGISTRO, APPELLANT,
v.
MAGISTRO.



Appeal, No. 128, April T., 1956, from order of Court of Common Pleas of Allegheny County, Oct. T., 1946, No. 2374, in case of Rose Magistro v. Giovanno Magistro, administrator of estate of Edward Magistro, deceased. Order affirmed.

COUNSEL

William F. Donatelli, with him Anthony Cavalcante, for appellant.

Armin II. Friedman, for appellee.

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

Author: Woodside

[ 182 Pa. Super. Page 488]

OPINION BY WOODSIDE, J.

This is an appeal from a decree of the Court of Common Pleas of Allegheny County dismissing a rule to show cause why a decree in divorce granted by said court on February 5, 1947, should not be opened and set aside.

Edward Magistro, libellant, filed a suit for divorce in the Court of Common Pleas of Allegheny County on August 27, 1946. The respondent was duly served, and caused an appearance to be entered in her behalf. Although she filed an answer, she did not question the

[ 182 Pa. Super. Page 489]

    jurisdiction of the court, nor did she deny the allegation in the libel that her husband resided at 273 Huey Street, McKeesport, Pennsylvania. After a property settlement had been effected between the parties, the wife requested that her contest of the divorce be discontinued, and that the appearance of her attorney be withdrawn.

At a hearing held on January 31, 1947 it was established by the testimony that the libellant resided in McKeesport, and worked at Kauffman's Department Store in Pittsburgh. On February 5, 1947 a decree in divorce was entered from which no appeal was taken.

The libellant died on May 2, 1954, a resident of New York City. On February 18, 1955, the respondent in the divorce action caused to be issued a rule to show cause why the decree in divorce should not be opened and set aside, alleging that the libellant, at the time he filed his original libel in divorce, was not a bona fide resident within the Commonwealth of Pennsylvania for one whole year prior to the filing of said libel. See Act of May 2, 1929, P.L. 1237, § 16, 23 PS § 16.

The executor of the estate of the libellant filed an answer, and the case was argued upon the petition and answer, after which Judge WEISS, who had heard the original divorce case, entered an order dismissing the rule to show cause ...


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