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DRUMMOND v. DRUMMOND (10/13/65)

SUPREME COURT OF PENNSYLVANIA


decided: October 13, 1965.

DRUMMOND
v.
DRUMMOND, APPELLANT

Appeal from order of Court of Common Pleas of Montgomery County, April T., 1960, No. 28, in case of Lois B. Drummond, Lois B. Drummond, mother and guardian of the person of Bonnie Drummond, a minor, v. Robert Watchorn Drummond.

COUNSEL

Philip P. Kalodner, with him Harry Shapiro, Desmond J. McTighe, David N. Bressler, and Shapiro, Stalberg, Cook, Murphy & Kalodner, for appellant.

Carl M. Mazzocone, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice Eagen joins in this dissenting opinion.

Author: O'brien

[ 419 Pa. Page 203]

This is an appeal from an order of the court below severing causes of action and granting permission to plaintiff-appellee to file an amended complaint.

The original action was commenced in June of 1960, seeking an adjudication of property rights between plaintiff-wife and defendant-husband, and for support and maintenance.

Defendant-appellant's objections to the jurisdiction of the court below were dismissed and this court modified and affirmed that dismissal. Drummond v. Drummond, 402 Pa. 534, 167 A.2d 287 (1961).

Trial of the case resulted in a decree awarding support to the appellee and making certain determinations with regard to interests in realty and personalty. An appeal to this court followed and we vacated those portions of the decree relative to the realty and personalty.

[ 419 Pa. Page 204]

Dissenting Opinion by Mr. Justice Cohen:

In Monaco v. Montgomery Cab Co., 417 Pa. 135, 208 A.2d 252 (1965), we did indicate that under the Pennsylvania Rules of Civil Procedure the exclusive method of raising a question of jurisdiction encompassing lack of jurisdiction over the subject matter or lack of jurisdiction over the person is by preliminary objections in accordance with Pa. R.C.P. 1017. However, I think we should treat the answer to the petition for severance of the causes of action as a preliminary objection to the petition for severance and the amended complaint raising the jurisdiction of the lower court to entertain either the severance petition or the amended complaint. It is clear that by our decision in Drummond v. Drummond, 414 Pa. 548, 200 A.2d 887 (1964), we determined that the claims of the plaintiff to the real estate and the brokerage accounts were vacated. Thereby, we terminated these proceedings as far as those items were concerned in that particular action. Our indication that plaintiff could commence a separate action without prejudice was only protective of the rights of the plaintiff and did not give further vitality to the terminated proceedings. Hence, treating this matter as if Rule 1017 had been complied with and that a proper preliminary objection raising a question of jurisdiction had been filed, I would determine the issue in the appellant's favor.

I dissent.

19651013

© 1998 VersusLaw Inc.



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