Opinion
November 24, 1952.
January 5, 1953.
Practice — Process — Service — Publication — Registered mail — Feme sole trader — Petition to set aside decree.
In a proceeding upon a petition to vacate a decree declaring petitioner's deceased wife a feme sole trader, on the ground that the decree was secured by fraud in that no proper service was made upon the petitioner, who was in fact ignorant of the proceedings, in which it appeared that the petition was filed approximately twenty-six years after the decree had been entered and after the death of the wife; and that service had been made by advertisement and, also, by registered mail addressed to petitioner's then place of residence in another state, which was receipted for by his landlady, it was Held that the court below properly dismissed the petition.
Before STERN, C. J., STEARNE, JONES, BELL and CHIDSEY, JJ.
Appeal, No. 225, Jan. T., 1952, from judgment of Court of Common Pleas No. 2 of Philadelphia County, June T., 1926, No. 5546, in the Matter of Sadie M. Anderson. Judgment affirmed.
Proceeding upon petition to vacate decree declaring petitioner's late wife a feme sole trader.
The facts are stated in the opinion by GORDON, JR., P. J., of the court below, as follows:
This case was before us upon a petition to set aside a decree declaring the petitioner's deceased wife a feme sole trader, which was entered for us by the Honorable THOMAS D. FINLETTER, sitting in the Summer Court, on July 19, 1926. At that time the wife was represented by the firm of Ladner and Ladner of this City. The ground on which the present petition to set aside the decree is based is an allegation that it was secured by fraud, in that no proper service was made upon the petitioning husband, who was in fact ignorant of the proceedings and hence, that the Court was without jurisdiction to enter the decree. Service of a petition for a certificate to act as a feme sole trader depends upon the provisions of the Act of May 4th, 1855, P. L. 430, which prescribes that service shall be made upon the husband in such manner as the Court shall direct. Under this Act, it has been held by both our Superior and Supreme Courts that service by publication is sufficient to bring the respondent husband within the jurisdiction of the Court: Jordan's Petition, 331 Pa. 270; In re Petition of Leakadia Cheska, 90 Pa. Super. 410. The service in this case by advertisement was, in itself, sufficient notice to the husband of the presentation of the petition to bring him within our jurisdiction. The record shows, however, that in addition to that service, due proof of which was filed in the case, Judge FINLETTER also directed service to be made upon him by registered mail at his then place of residence in Wilmington, Delaware. That service was made, as shown by the registered return receipt of the husband's landlady, which was also filed of record in the case. The proper service of such a notice presumes conclusively that the person to whom it is addressed actually received it.
The defense set up by the husband in this case that he did not actually know the proceedings had been instituted, merely because a person properly served did not deliver the notice to him, cannot justify our setting aside the decree entered upon it. The service was as binding upon him as if he had been personally served with the process. He will not be heard to say that he was ignorant of the pendency of the litigation to which the service referred. To hold otherwise would nullify the well known and established principles governing the effect of service by advertisement or at a person's place of residence or business, and would open the door to the invalidation of all services except those that are personally made, upon the mere assertion that the one to whom they are addressed never received them, and was ignorant of their contents.
As to the service by registered mail, the petitioner's depositions were directed to an attempt by him to show that he never actually received the notice, which was so served. His own evidence was so conflicting and so feeble that, looking at it as a whole, we were unable to conclude that he did not receive the notice which was mailed to him. However that may be, his attempt to show that the person who signed for the notice did not live in the house and was not his landlady was thwarted by the evidence of her husband, who established her existence as the mistress of the house at the time the registered return receipt was signed by her.
This being so, there is no reason for vacating or setting aside the decree of Judge FINLETTER entered in 1926, declaring the petitioner's wife to be a feme sole trader. He could not have done otherwise under the proofs before him. That decree was entered in 1926, and now, twenty-six years later, the husband attacks the decree, not only on the ground of want of notice, but also by attempting to prove that his wife deserted him in Wilmington. Upon this latter subject, the husband's mouth is closed by the death of his wife, who alone could reasonably be expected to confute his assertion that she deserted him. It is too late for the man who is presumed by the record to have received proper notice of the proceedings, which he chose to ignore, to come in, more than a quarter of a century after the decree was entered, and ask that it be set aside on a ground which his recently deceased wife alone could contradict, in a belated effort to pave the way for claiming the rights of a husband in her estate: Wilwohl's Petition, 311 Pa. 152.
In addition, it may be observed, first, that under the Act of May 28, 1915, P. L. 639, amending the original Feme Sole Trader's Act, all that is required to entitle a wife to a decree is that the parties shall have lived separate and apart for one year or more, and that the husband shall not have supported his wife for that period, and second, that what the Court does is to grant the wife a certificate recognizing and declaring her status as a feme sole trader, which arises out of the separation of the parties and the failure to support, thus enabling her to dispose of her property as if he were dead: Wilwohl's Petition, supra. This wife possessed that status during the remainder of her life, and whether there are reasons why he should be now permitted to participate in her estate, notwithstanding the decree in this case, is a question solely for the Orphans' Court to decide.
It was for these reasons that we dismissed the husband's petition to vacate and set aside the decree of 1926 entered by Judge FINLETTER.
Petitioner appealed.
Leslie Pinckney Hill, 2nd, with him E. Washington Rhodes, for appellant.
Harry R. Back, with him Back Levy, for appellee, was not heard.
The judgment of the court below is affirmed on the opinion of Judge GORDON.