Householder v. Householder

The Act of May 25, 1878, § 1, P. L. 156, provides as follows: “In any suit or action in divorce, now pending or that shall hereafter be brought, it shall and may be lawful for the respondent, at any time after the return of the subpoena, to enter a rule upon the libellant to furnish a bill of particulars of the cause of action as set forth in the libellant’s petition filed, and if the same be not furnished by the libellant within thirty days after service of notice of rule entered, it shall be the duty of the court to enter a judgment of non pros.: Provided, that the court may, upon cause shown, extend the time in which to file the bill of particulars.”

In this case respondent entered a rule upon libellant to furnish a bill of particulars of the cause of action. Libellant failed to furnish same within thirty days, as required by the act. For some reason, not of record, the respondent failed to follow up her advantage by the prayer for the entry of a judgment of non pros. Preliminary to the taking of testimony before the *666master, counsel for the respondent moved for the dismissal of the libel for want of a bill of particulars, and, being overruled by the master, again raises the same question in the exceptions to the master’s report. We feel that the master rightfully disallowed the motion for the dismissal of the libel, for that power was not in him. When this question was raised before the master, he should have returned the matter to the court in an interlocutory report before proceeding with the taking of testimony. Upon the record before us, this case was not ready for submission to a master. A rule granted out of this court still remains undisposed of. The rule for a bill of particulars remains unanswered and the libellant cannot proceed any further until said rule is answered or otherwise disposed of in accordance with the provisions of the act above quoted. All proceedings subsequent to entry of the rule are stricken from the record. The libellant is hereby granted leave to answer the rule within fifteen days after notice hereof; otherwise, the prothonotary is directed to enter a judgment of non pros, against the libellant.

From Edwin L. Kohler, Allentown, Pa.