Keller v. Commonwealth , 71 Pa. 413 ( 1872 )

The opinion of the court was delivered, by

Williams, J.

The general Act of the 13th of April 1867, for the relief of wives and children deserted by their husbands and fathers, Pamph. L. 78, repealed the local Act of the 27th of February 1867, Pamph. L. 271, so far as the latter is inconsistent with its provisions, if it did not wholly supersede it: Nusser t>. The Commonwealth, 1 Casey 126. Nor was it revived by the Act of the 15th of April 1869, Pamph. L. 75, which, though entitled a supplement to the Act of the 27th of February 1867, was intended as a supplement to the general Act of the 13th of April 1867, as its provisions clearly show. The recital of the title of the act which it was intended to supplement, is so clearly a mistake, that we have no hesitation in treating it as such, and regarding the supplement as a part of the general act. Under the provisions of this act the defendant, though a resident of Lancaster county, was amenable to the Court of Quarter' Sessions of Berks county, in which the information for desertion was made, and the warrant for his arrest was issued. There is nothing in its provisions, as said by our brother Sharswood, in Demott v. The Commonwealth, 14 P. F. Smith 302, to confine the jurisdiction of the offence to the court of the county where the defendant has his residence or settlement. The whole scope and purview of the statute is inconsistent with such an intention. The defendant then, having been arrested in Lancaster county, where he resided, was properly bound over to appear at the next Court of Quarter Sessions of Berks county, there to answer the said charge of desertion.

Nor were the proceedings in the Court of Quarter Sessions of Lancaster county, on the complaints previously made by the mother of the children, as set out in the defendant’s second plea, a bar to the proceedings in this case. If, upon the complaints made by the wife in 1867, the Quarter Sessions of Lancaster county refused to make an order requiring the defendant to pay any sum for the support of herself and children, on the ground of his alleged desertion, dismissing the complaint in the one case and granting leave to the parties to settle it in the other, it does not follow that in 1871, when the complaint in this case was made by the grandfather of the children, the defendant was not liable to an order to pay a reasonable sum for the support and maintenance of his children, if it were shown that he had deserted them. It is equally clear that the pendency of the action of assumpsit instituted by the complainant in the Common Pleas of Lancaster county, at November Term 1869, No. 20, to recover compensation of the defendant for the support and maintenance of the children, as averred in the second amended plea, is no bar to this proceeding. That action was brought to recover the amount alleged to be due and owing for their support and maintenance at its institution. The complaint in this case was made for the purpose of obtaining an order of the court requiring the defendant to pay for their future support and maintenance. But there is more substance in the assignment of error in the decree as made by the court. It is clear, from all the provisions of the act, that it was not intended to provide a remedy for the recovery of the expense previously incurred in the support of minor children whose father had deserted or neglected to maintain them, but to provide a mode of compelling him to pay a reasonable sum for their future support and maintenance. So far, then, as the complainant has any claim for the past support and maintenance of the defendant’s children, his remedy is by an action at common law in which the defendant will be entitled to have the question and extent of his liability determined by a jury, and he cannot be deprived of this right under the summary proceedings authorized by the statute. So much of the decree, therefore, as orders the payment of a specific sum for the previous support and maintenance of the children, is clearly erroneous and must be set aside.

If the defendant is now and at all times has been willing to take charge of his children, and to support, maintain and educate them well and sufficiently as becomes a parent, as averred in his third plea, he is clearly entitled to their custody, and ought not to be compelled to pay the complainant for their support and maintenance. But we must presume that he failed to satisfy the court below of'the truth of this plea by any sufficient evidence, otherwise the court would have refused to make the order for their support. If he is really willing to support and maintain his children, the way to obtain their custody and a vacation of the decree for their support, is clearly indicated in the opinion of Mr. Justice Agnew, in the case of The Demott v. Commonwealth, 14 P. F. Smith 805, in which he says : “ Maintenance is the sole object of the act, and when the father is really willing to maintain his child at home, and makes a boná fide claim for this purpose, I see no reason why he shall not recover its custody, perform his duty, and go into the Quarter Sessions to obtain a suspension of the order, and in the end a vacation of the decree, on satisfying the court that he is maintaining it properly.” The way is therefore open for the defendant to show his willingness to maintain his children, and to obtain a vacation of the decree for their support.

And now, October 17th 1872, it is ordered, adjudged and decreed, that so much of the decree of the Court of Quarter Sessions as requires the plaintiff in error, the defendant below, to pay to Jacob Good, $250 for the support and maintenance of the aforesaid children (Adaline Keller and Franklin Keller), from the 1st of November 1869 to the 23d of September, A. D. 1871, he and the same is hereby reversed and'set aside; and that the residue of the said decree (except so much thereof as provides that one of the conditions of the recognisance into which the defendant is required to enter, shall be for the payment of the aforesaid $250), be and the same is hereby affirmed. The costs of this appeal to be paid by the appellant.