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DRUMMOND v. DRUMMOND (06/01/64)

June 1, 1964

DRUMMOND, APPELLANT,
v.
DRUMMOND, APPELLANT.



Appeals, Nos. 89 and 92, Jan. T., 1964, from decree of Court of Common Pleas of Montgomery County, April T., 1960, No. 28, in case of Lois B. Drummond and Lois B. Drummond, mother and guardian of the person of Bonnie Drummond, a minor, v. Robert Watchorn Drummond. Decree modified and, as modified, affirmed.

COUNSEL

Alexander F. Barbieri, with him Carl M. Mazzocone, and Barbieri and Sheer, for plaintiff.

Bayard M. Graf, with him J. Willison Smith, Jr., for defendant.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Cohen

[ 414 Pa. Page 550]

OPINION BY MR. JUSTICE COHEN

The parties are separated but not divorced. Plaintiff-wife brought this bill in equity seeking maintenance from defendant-husband under the Act of May 23, 1907, P.L. 227, §§ 1, 2, as amended, 48 P.S. §§ 131, 132 (Supp. 1963), and claiming an interest in certain property held by defendant. In Drummond v. Drummond, 402 Pa. 534, 167 A.2d 287 (1961), we affirmed as modified the lower court's dismissal of defendant's preliminary objections pertaining to the jurisdiction of that court. After trial, the chancellor awarded plaintiff support and an entireties interest in certain real estate, plus counsel fees, while denying her an interest in other real estate and a brokerage account. The court en banc affirmed this determination. Both parties appealed.

Defendant contends that the court below had no power to enter a decree under the Act of 1907 because plaintiff failed to establish the following prerequisites to invocation of the act: (1) that defendant has failed or neglected to support plaintiff, and (2) that defendant separated himself from plaintiff without reasonable cause. This contention goes to the jurisdiction of the court below to entertain this cause of action under the 1907 statute. Defendant failed to raise this issue

[ 414 Pa. Page 551]

    in his appeal from the dismissal of his preliminary objections. It is well settled that an objection to jurisdiction over the subject matter may never be lost by estoppel, consent or waiver. Brenner v. Sukenik, 410 Pa. 324, 328, 189 A.2d 246, 248 (1963); see 9 Standard Pennsylvania Practice, Ch. 40, § 48 (rev. ed. 1962) and cases cited therein. However, we have already adjudicated jurisdictional objections of defendant in his first appeal, supra, as permitted by the Act of March 5, 1925, P.L. 23, § 1, 12 P.S. § 672. See Creighan v. Pittsburgh, 389 Pa. 569, 132 A.2d 867 (1957). That determination is therefore the law of the case as to all jurisdictional objections which were actually raised or might have been raised in that appeal. See Adams v. Hubbard, 227 Pa. 304, 76 Atl. 17 (1910); 9 Standard Pennsylvania Practice, supra, Ch. 40, §§ 261, 262. Cf. Security Trust & Savings Bank v. Southern Pac. R. Co., 19 Cal.App.2d 420, 65 P.2d 818 (1937); City of Stuart v. Green, 91 F.2d 603 (5th Cir. 1937). These include the alleged absence of the jurisdictional prerequisites to invocation of the 1907 statute, even though facts were elicited on trial that may tend to indicate that those prerequisites were lacking. The defendant is therefore barred from raising this issue in this appeal.

It is important to note, however, that the Act of 1907 was passed in order to supplement the usual remedy for non-support - an action in the quarter sessions court as now provided by the Act of June 24, 1939, P.L. 872, § 733, as amended, 18 P.S. § 4733. See MacDougall v. MacDougall, 397 Pa. 340, 343, 344, 155 A.2d 358, 360 (1959). Under the circumstances of this case, plaintiff's rights could have been amply vindicated by an action in the court of quarter sessions, and the better procedure would have been to institute an action for support in that court. Having failed to raise this question at any time during these proceedings,

[ 414 Pa. Page 552]

    defendant has similarly lost this ...


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