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COLIN v. COLIN. (06/10/59)

June 10, 1959

COLIN, APPELLANT,
v.
COLIN.



Appeal, No. 67, April T., 1959, from decree of Court of Common Pleas of Allegheny County, Oct. T., 1958, No. 480, in case of Aloysious O. Colin v. Myrdith J. Colin. Decree reversed.

COUNSEL

Abraham Fishkin, for appellant.

William J. Krzton, with him Esler W. Hays, for appellee.

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

Author: Watkins

[ 190 Pa. Super. Page 126]

OPINION BY WATKINS, J.

This is an appeal from an order of the Court of Common Pleas of Allegheny County dismissing the complaint and refusing a divorce to Aloysious O. Colin,

[ 190 Pa. Super. Page 127]

    the appellant, from Myrdith J. Colin, the appellee, on the ground of desertion.

The parties were married on March 10, 1927, and went housekeeping in the Borough of Brackenridge, Allegheny County, Pennsylvania, where they lived together without interruption until early in 1952. They are both about 55 years of age. The husband still resides in the home which the wife left in 1952 in Brackenridge, and the wife lives in the Borough of Wilkinsburg, Allegheny County, Pennsylvania, with a married daughter, her child by a former marriage. There is one child of this marriage, a son, Jack Lee Colin, who is married and employed by his father.

This marriage has been the occasion of extended litigation since the separation in 1952. On May 23, 1952, the wife filed a complaint in the Court of Common Pleas of Allegheny County, seeking a divorce, a mensa et thoro, alleging cruel and barbarous treatment and indignities. A cross-complaint was filed by the husband for an absolute divorce on the same grounds. The master recommended the denial of both complaints. Exceptions were filed, which the court below overruled, and both complaints were dismissed.

The husband did not appeal the dismissal of his action but the wife appealed to this Court. While the appeal to the Superior Court was pending, the husband on July 20, 1955, in the Court of Common Pleas of Allegheny County filed a complaint in divorce on the ground of desertion. He discontinued this action on January 16, 1957. On July 17, 1956, this Court affirmed the decree of the court below refusing to grant the divorce. Colin v. Colin, 181 Pa. Superior Ct. 564, 124 A.2d 184 (1956).

Subsequent to this decision the wife continued to reside with her daughter in Wilkinsburg and made no effort or attempt to ...


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