Appeal, No. 225, Oct. T., 1959, from order of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1952, No. 4036, in case of Denver Charles Wisecup v. Fernaleen Hall Webb Wisecup. Order affirmed.
Miles Warner, for appellant.
No argument was made nor brief submitted for appellee.
Before Rhodes, P.j., Wright, Woodside, Ervin, and Watkins, JJ. (hirt and Gunther, JJ., absent).
[ 190 Pa. Super. Page 386]
On March 8, 1954, in an action for divorce a.v.m. on the ground of indignities to the person instituted by Denver Charles Wisecup against Fernaleen Hall Webb Wisecup, Court of Common Pleas No. 7 of Philadelphia County granted the husband a final decree. The wife entered an appearance but did not contest the action, and there was no appeal. On December 30, 1958, the husband petitioned for a rule to show cause why the record should not be opened, the decree in divorce a.v.m. vacated, and a decree in annulment entered. On March 11, 1959, this petition was denied by the court below, and the husband has appealed.
[ 190 Pa. Super. Page 387]
The complaint in divorce, filed January 15, 1953, averred that plaintiff and defendant were lawfully joined in marriage on November 14, 1942. The master made, inter alia, the following findings of fact: "1. The plaintiff and defendant were legally married on November 14, 1942, in Washington, D.C., by Reverend Howard Stone Anderson. The original marriage certificate was produced at the meeting, offered in evidence, and was copied verbatim into the record. Neither the plaintiff nor the defendant was previously married". The petition for the rule, with which we are presently concerned, alleges that petitioner's averment in the divorce action that there had been a lawful marriage was made in good faith, but that an investigation subsequently disclosed that the wife had entered into a prior marriage, which had never been legally dissolved. This investigation was not commenced until February 13, 1957, immediately prior to the trial of an action instituted by the wife in the United States District Court for amounts allegedly due under written contracts executed between the parties prior to and in anticipation of their separation and divorce.*fn1 It is apparent from the exhibits attached to the petition, and not denied, that, on May 10, 1941, in Hattiesburg, Mississippi, petitioner's wife had gone through a ceremony of marriage with one William S. Jenkins, Jr. In an affidavit attached to the petition, it is admitted by petitioner that he heard a rumor concerning this prior marriage as early as 1943.*fn2
[ 190 Pa. Super. Page 388]
The question on this appeal, as stated by appellant's present counsel, is as follows: "Where a husband in good faith obtains from a Pennsylvania court a decree of divorce a.v.m. from his wife, and subsequently ascertains that he was never married to her because of her prior subsisting marriage to another man which she has concealed, may the court without taking testimony dismiss the husband's verified and documented petition seeking to have the record opened, the cause remanded to the master for further hearing, and a decree in annulment substituted for a decree in divorce?"
The petition presented to the lower court, as previously indicated, prayed for a rule "to show cause why the record in these proceedings should not be opened, the decree in divorce a.v.m. entered March 8, 1954, vacated, and a decree in annulment entered". Despite this two-pronged attack, appellant complains in his supplemental brief that "the lower court has misconceived the nature of plaintiff's petition filed December 30, 1958. The petition seeks not to open the judgment of March 8, 1954, but to vacate it, and to substitute a decree in annulment therefor, on the ground that it was and is void ab initio". The distinction between petitions to open and petitions to vacate was set forth by Mr. Chief Justice KEPHART in Nixon v. Nixon, 329 Pa. 256, 198 A. 154, as follows:
"While there have been some definite rules promulgated as to proper practice for attacking decrees and judgments generally, no adequate practice seems to be laid down for decrees in divorce ... The prayers of many petitions attacking these decrees have ignored the question whether or ...