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GRIMES v. GRIMES (05/02/61)

May 2, 1961

GRIMES
v.
GRIMES, APPELLANT.



Appeal, No. 203, Jan. T., 1961, from order of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1960, No. 3242, in case of Helen S. Grimes v. G. Randle Grimes et al. Order affirmed.

COUNSEL

Francis T. Anderson, for appellant.

Louis D. Apothaker, with him Marvin Comisky, and Blank, Rudenko, Klaus & Rome, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Bok

[ 403 Pa. Page 639]

OPINION BY MR. JUSTICE BOK.

This is a case brought in Philadelphia under the Act of May 23, 1907, P.L. 227, as amended by the Act of December 15, 1955, P.L. 878, 48 PS §§ 131, 132.

The complaint and evidence show that the parties were married on January 14, 1956, and lived together in Montgomery County until December 2, 1956. Defendant then left his wife without reasonable cause and moved to Philadelphia, where he lived until some time in 1960. Under agreement, he paid her monthly $290 for two years and then $300 for two more. Since May 1, 1960, he has paid nothing and has left the Commonwealth. Plaintiff has not been a resident of Philadelphia County and is now a resident of Chester County.

The court below issued a preliminary injunction against the corporate defendants to prevent their taking or paying out assets belonging to the husband defendant. Defendant husband then filed a preliminary objection to the action, averring lack of jurisdiction in the Philadelphia court. Two banks and two stockbrokers

[ 403 Pa. Page 640]

    were also joined as defendants but at the preliminary hearing counsel was satisfied that they had nothing belonging to defendant and discontinued the action against them. The court overruled the preliminary objection and upheld its jurisdiction. Defendant husband appealed.

Although the point has not been raised, the recency of our decision in Drummond v. Drummond, 402 Pa. 534 (1961), 167 A.2d 287, compels us to observe that the banks and stockbrokers were improperly joined as defendants, since the Legislature has seen fit to give the wife an action in personam against the husband alone (section 1, 48 P.S. § 131), and against the property in rem (section 2, 48 P.S. § 132). The banks and stockbrokers may therefore enter the case as garnishees after the suitability of the wife's maintenance has been determined, but they have no place as original defendants.

The preliminary objection is based on a single point, that under the Act of 1907, as amended by the Act of 1955, an action under them may be brought only "in the court of common pleas of the county where service may be had on the husband as in other actions at law or in equity, or in the county where the desertion occurred, or where the wife or children are domiciled," and that the complaint shows on its face the lack of all of these requirements. Defendant relies on DuPuy Estate, 373 Pa. 423 (1953), 96 A.2d 318, where we said: "Counsel for the deserted wife further argues that the wife is entitled to an in rem decree against the property of appellant within Allegheny County irrespective of her domicile. Reliance is placed upon the second section of the Act of 1907, supra, which provides for ...


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