59 N.J. Eq. 310 | New York Court of Chancery | 1899
It was not contended that a bill of review was not the proper remedy of the wife in this case, and I am satisfied that it is the proper remedy. Story Eq. Pl. §§ 404, 412.
The proofs show the following state of affairs: For some time prior to the trial of the original cause in July, 1897, the husband had been allowing his wife a weekly sum of $6 in the way of trade at a provision store. She rented a tenement, and supported herself and three children by manual labor — washing, &c. — and in the summer time rented out some of her apartments to cheap lodgers. These were persons who came to Asbury Park for the summer, some of them to work at various employments there and others for vacation. Shortly before the 1st of August, 1897, the husband withdrew the credit given to his wife at the provision store, and stopped his weekly support. On the night of the 1st of August he came to the house late in the evening, solicited and obtained from his wife marital rights for that night. He came the next night and again solicited marital rights, and she refused him unless he would renew his weekly allowance. This demand and refusal were kept up for almost every night during the week. The husband denies in the most positive manner any such solicitation or interview. But the facts are sustained, not only by the evidence of his wife, but by that of four credible persons, and I am constrained to believe that he has deliberately falsified in that respect.
On the 7th of August, 1897, his wife made complaint to a justice of the peace against her husband for non-support, and on the 12th the justice issued a warrant for Clayton, who was brought before him on the 13th or 14th, confessed his delinquency and entered into security for the payment to his wife of a weekly sum of money. How long that payment continued does-not appear.
On one of the last days of January, 1898, one of the children of the parties died, and notice was sent to the husband, who came to the house and stayed there most of the time till after the funeral, and the proof satisfies me that he slept two nights with his wife and had sexual intercourse with her. Tins he
It remains to determine what effect these facts .now have upon the decree already entered.
My recollection of the original case against the wife is that, after hearing counsel, my mind was in doubt as to what disposition should be made of the cause; I held it over, had the evidence Avritten out and came to the conclusion, not without some hesitation, that the case of the petitioner was made out. Iu fact, while I felt constrained to advise the decree, I also felt that I should have been much better satisfied if the case had been clearer on the evidence than it Ayas.
I am now well satisfied that if the case had been opened before decree signed, and evidence of Avhat occurred in August, 1897, had been produced before me, the effect upon my mind of the conduct of the husband Avould have been such that I should have had 'doubts Avhether he himself believed in his wife’s guilt, and if he himself, knowing the witnesses and knowing the circumstances, doubted it, or did not thoroughly believe it, the result would have been that I should have advised a dismissal of the petition, quite independent of the question of condonation.
Of course the deliberate act of the husband in seeking the society of the Avife and asking for and exercising his marital rights, after a full disclosure to him in court of the evidence of her previous infidelity, showed that he did not feel that he had been injured. It was a complete condonation of her guilt. She SAvears — but in that she is mistaken — that she did not know that any decree had been entered against her until after her child’s funeral. I am satisfied that she did hear of the decision of the cause shortly after it Avas announced to her counsel, and that she was informed by her then solicitor that the decree had been signed shortly before her child died.
In her bill of review she states that some time after the proceedings before the justice she called upon her counsel in the original cause, who is not her counsel in this cause, and stated the circumstance of her husband going back to her and enjoying
In the meantime the husband had married a second time, and the defence now made is that the rights of another person having intervened, the wife has been guilty of such laches as that the court should not afford her relief.
In considering this defence the situation and character of the complainant must be taken into consideration. She is an extremely illiterate and generally ignorant person, of high temper, and having an ill-regulated mind; very poor, with herself and two children to support by her manual labor, without any aid ; and hence she is not to be held to the same degree of diligence and care of her rights that a more intelligent sensible person, with command of sufficient pecuniary means, would be held. I think the case shows as much diligence on her part as can be reasonably expected from a person of her character and in her situation.
My inference from the whole of the facts is that the complainant did not herself know what effect the conduct of her husband had upon her rights as against him, and I doubt very much if some of the counsel that she consulted fully appreciated its effect or were able to devise a remedy for her in the premises. It is evident that she felt wronged and aggrieved by her husband, and felt that in some way the divorce was invalidated, and looked about in every direction for some redress against him,
But the fact still remains that no legal measures were taken on her behalf until the month of December, 1898, nearly a year after the decree of divorce was signed, and in the meantime her husband had married again, and the question is whether her right under a bill of review, if filed as quickly as reasonable ' diligence under the circumstances requires, is affected by the fact that there has been an intermediate marriage.
Now the statute gives all persons three years within which to appeal from any decree of this court, and I understand the law to be that a decree of divorce is not an exception. It is, of course, not open to dispute that a decree in a divorce case is appealable, no matter whether for or against the divorce, and the language of the one hundred and fourteenth section of the Chancery act is general, that all final decrees are subject to appeal for a period of three years. The result of that statute is that in a contested divorce case any person intermarrying with the party procuring the divorce enters into that relation subject to the. risk of an appeal being taken at any time within three years, and the decree being reversed. What the effect of such reversal under such circumstances would be upon the status of the second wife, and any children born from the marital intercourse, if the intermarrying took place a reasonable time after the signature of the decree and before appeal taken, it is not necessary to determine. Certainly, in such case, at the time of the marriage, the divorced spouse had a right to contract the marriage relation, and in case no appeal is taken, or in case of an appeal if the decree be affirmed, the marriage must be held to take effect from the day it is entered into. And yet, as I have observed, it seems perfectly well settled, and it has always been the sentiment of the bar of this state, that the rights of the incoming spouse to the continuance of the marriage relation, with all its incidents, is
Now the lady who has intervened and married the defendant, Clayton, in this case entered into those relations subject to that risk for three years; and, if so, I cannot see that it is any hardship upon her to subject her to the risk of a bill to review the decree that was made within a less time than three years. She is, in law, presumed to be aware of, first, the danger of an appeal, and second, the danger of a bill of review.
I will therefore advise a decree that the'decree of divorce in this case be set aside and annulled. -
The defendant must pay the complainant’s costs, including a counsel fee of $50.