
    CULP’S APPEAL.
    A man convicted of desertion alleged that he never had married the Complainant, and applied for a divorce ; held that the libel would nos lie.
    Appeal from Common Pleas No. 3, of Philadelphia County. No. 233, January Term, 1882.
    The libel was as follows :
    The petition of Austin Culp, of the County of Philadelphia, respectfully showeth :
    That on the 14th day of March, A. D. 1881, your petitioner was, by a summary finding on a charge of desertion in the Court of Quarter Sessions of Montgomery County, in the State of Pennsylvania, by the Hon. Henry P. Ross, Judge, declared to have been married to one, Lizzie Ottinger, now calling herself Culp, on the 14th day of August, A. D. 1878.
    That the said finding, so making and declaring a marriage between the petitioner and the said Lizzie Ottinger, was procured by fraud and perjury on the part of the said Lizzie Ottinger, in willfully and falsely swearing that on the evening of the 14th day of August, A. D. 1878, she was married in a house in Norristown to your petitioner.
    
      That the petitioner was never married in fact or in law to the respondent or any other woman. That the libellant and 'respondent have never lived or cohabited before or since, or on the said 14th day of August, A. B. 1878, as man and wife.
    That said alleged marriage has never been subsequently confirmed by the acts of the petitioner.
    Wherefore, your petitioner further showing that he is a citizen of this Commonwealth of Pennsylvania, and hath resided therein for more than one whole year previous to the filing of this, his petition or libel, prays your Honors that a subpoena may issue in due form of law, directed to said Lizzie Ottinger, alias Culp, commanding her to appear in this honorable court, at June term next, to answer the complaint aforesaid, and also that a decree of the Honorable Court may be made made for the divorcing of him, the said Austin Culp, from the bonds of marriage as if he had never been declared married.
    And he will ever, &c.
    A rule to dismiss libel was made ahsolute, and the appellant then appealed, assigning the dismissal of the libel for error.
    John C. Redheffer, Esq., for appellant,
    cited Stevenson vs. Stevenson, 7 Phila., 386; Bickings Appeal, 2 Brewster, 202; Tholey’s Appeal, 93 Penna. 36.
   The Supreme Court affirmed the decree of the Common Pleas on April 18, 1882, in the following opinion:

Per Curiam

There is no act of assembly upon which the libel can be maintained. The libellant does not allege a marriage by force or fraud, but denies any marriage at all, and asks to divorced on that ground. It seems that the respondent has obtained a decree against him in Montgomery County for desertion, and the libellant alleges that the decree was obtained by fraud and perjury on the part of the respondent. We think clearly that the case is not within the Act of May 8, 1854, P. Laws 644.

Decree affirmed and appeal dismissed at the costs of the appellant.  