93 N.J. Eq. 303 | New York Court of Chancery | 1922
This is a strife between divorced parents for the custody of their two children. The decree of divorce, granted by the Court of Common Pleas of Philadelphia, Pennsylvania, makes no disposition of the children. They now reside at Lakewood, in this state, with their mother. The father, a reddent of'Chestnut Hill, Pennsylvania, petitioned this court to award their custody to him. The mother, in her answer to. the petition, alleges that he is an unfit person to ha.ve them, specifically setting forth the grounds for the allegation, and prays that they be awarded to her. The charge of unfitness is traversed and the cause was set down for hearing. Before the hearing day the petitioner moved to dismiss his petition, as a matter of course, upon the payment of costs. This was denied him, and he was directed to give notice of the motion. At the hearing the respondent objected to the dismissal, insisting that it is her right to have the issue determined, and, at all events, that the dismissal should be on payment of costs, including a counsel fee. The counsel fee was resisted on the ground that the court was without power to allow it, the argument being that counsel fees, like costs, are creatures
There is also this reason why the petitioner should not be allowed to dismiss his petition. He is a non-resident. The court mow has jurisdiction of the subject-matter and over the petitioner by his voluntary submission. The respondent ought not to be deprived of this advantage, and the benefit of a decree (if the children are ultimately awarded to her) of indisputable integrity and force, and that will spell res adjudicata in every tribunal, at home or abroad, wherever presented. If the petitioner is permitted to escape the jurisdiction by dismissing his petition, and the respondent is put to her petition to have her right to the custody of her children, judicially established, he could not again be brought into court. There is no provision in the statute for substituted service 'of process in cases of this nature. The provision of the Chancery act (Comp. Stat. p. 414) applies solely to service upon absent defendants to bills and is not available. Service by notice might perhaps estop- him from later attacking the adjudication in this state, but the decree would have no extra-territorial effect. The advantage gained by tire respondent, by1 the petitioner’s voluntary submission to- the jurisdiction of tire court, and the prejudice her cause would suffer if he were released, precludes the right to dismiss and withdraw.
Authority for the rule that a suitor controls his cause and may dismiss upon the payment of -costs may be found in the textbooks on “Practice”' and in any of the current digests. The exceptions to the rule are also- noted. Vice-Chancellor Pitney, in McCarren v. Coogan, 50 N. J. Eq. 268, 611, discussed the exeep
The cause may be brought on for hearing on giving the usual notice.