28 A.2d 102 | N.J. | 1942
The appeal is from two orders in Chancery: (1) an order dated February 25th, 1942, permitting complainant to amend her bill by adding a cause of action for separate maintenance and (2) an order dated March 6th, 1942, directing defendant to pay alimony and counsel fees under the bill as so amended.
Complainant filed her bill to compel specific performance of a separate maintenance agreement. Defendant answered that the Court of Chancery had no jurisdiction to decree specific enforcement in such a suit. Complainant moved to strike that portion of the answer, and her motion was denied. She appealed, and we affirmed.Armour v. Armour,
The first memorandum contains these statements regarding the application to amend the bill:
"Defendant opposes the application on the ground that the original complaint sets up alleged cause of action beyond the jurisdiction of the court (as has been adjudged) and that the original bill should therefore be dismissed before an amendment is allowed. Obviously, defendant is entitled to have the original bill dismissed; obviously, also, if it were now dismissed there would remain no bill to amend."
The reasoning is faultless, but it does not lead to the retention of the bill to permit the complainant to set up a new case. Even if there was not formal notice of motion to dismiss the bill it was put and argued in Chancery that inasmuch as that court had been held, on appeal, to be without *300 jurisdiction to entertain the bill the bill should be forthwith dismissed without amendment. The point was well made.
It was not that the bill was grounded in a cognizable cause which was defectively or insufficiently stated. The bill stated its claim plainly enough, but the claim, thus made manifest, was not within the court's jurisdiction. The cause of action, if we may call it that, was not within Chancery jurisdiction. The advisory master understood this and held forth the suggestion that after he had given life to the litigation by permitting an amendment setting up a cognizable cause of action he would "entertain a motion to dismiss the alleged causes of action contained in the original bill." That procedure, in logic and under the cases, was not sound. The advisory master rested his course, and the respondent here relies, upon two decisions,Schaffer v. Krestovnikow,
"Amendments are allowed in equity with great liberality.Codington v. Mott,
We think that the course there suggested should be followed here. The order directing payment of alimony and counsel fees falls along with the amendment.
The orders below will be reversed and the record will be remitted to the Court of Chancery with a direction to dismiss the bill without prejudice to the filing of a new one. *302 For affirmance — DONGES, J. 1.
For reversal — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, JJ. 13.