Kepner's Appeal

The refusal of the Court of Common Pleas to grant a rule to show cause why their decree of divorce should not be revoked, is not the subj ect of review by appeal to the Supreme Court.

Appeal from the Court of Common Pleas of Schuylkill county: Of January Term 1880, No. 327. Libel in divorce by Sophia Kepner, by her next friend, Levi Huber, against S. K. M. Kepner. On the 25th of January 1869, Sophia Kepner filed her libel in the Court of Common Pleas of Schuylkill county, upon which the court awarded a subpoena, which was returned non est inventus, and thereupon, on the 1st of March 1869, the court, upon motion, awarded an alias subpoena to June Term 1869. This alias subpoena was also returned non est inventus by the sheriff, and publication was made for four weeks in July 1869,' notifying the respondent to appear at September Term 1869. On the 7th of June 1869, the court appointed an examiner to take depositions ex parte libellant and report the same to the court to September Term 1869. On the 30th of June 1869, depositions of the petitioner were taken, which were filed in court on the 6th of September 1869, and on the same day the court decreed that libellant be divorced. On the 5th of May 1879, the respondent presented his petition, praying for a rule on the libellant to appear and show cause why the decree should not be revoked. The court took the papers, and on the 19th of May 1879, filed-them, together with an order refusing the rule, with the verbal announcement that the respondent had waited too long to make his application. On the 25th of August 1879, the respondent presented an additional petition alleging the time of his first knowledge of the decree of divorce to he September 1878; and on the 16th of February 1880, the court again refused a rule, and the petitioner excepted to the order of the court. When these petitions were presented and the rule prayed for, the counsel for the respondent claimed that the decree of divorce was void for want of jurisdiction; that it was not justified by the depositions ex parte libellant, she not having proved that she was a citizen of Pennsylvania or had resided therein for one year previous to filing her libel. The court refused the rule, when the respondent took this AVrit, alleging that the court erred in refusing to grant the rule; in the appointment of the examiner and decreeing a divorce upon the depositions ex parte libellant; in the decree of divorce before notice of publication had been returned, and in not dismissing the libel for Avant of jurisdiction. When the case came on for argument in the Supreme Court, the appellee’s counsel moved to quash the writ on the ground that the refusal of the court to grant a rule to show cause why the decree should not be revoked was a discretionary act, and Avas not the subject of review.