90 N.J. Eq. 322 | New York Court of Chancery | 1919
On October 28th, 1916, the petition in this canso was filed. It charged the defendant with having deserted the petitioner in September, 1912, ever since which time, and for more than two years then last past, the defendant had willfully, continuedlv and obstinately deserted the petitioner. The defendant being served with citation and certified copy of the petition, filed an answer on December 21st. 1916, in which he denied-the desertion charged. On December 23d, 1916, on motion of petitioner’s solicitor, and by convent of the solicitor of defendant, this cause
On October 30th, 1918, the petitioner commenced a new and independent -suit for divorce against the defendant by petition filed on that date, in which she alleged that in September, 1912, defendant commenced a course of cruel and abusive treatment toward petitioner and continued the same without provocation or just cause until she was compelled to cease cohabitation with him,- particularly, specifying defendant’s misconduct, and cruel acts.; wherefore, she alleged, that by the true intent and meaning of the statute in such case made and provided the defendant had ever since October 23d, 1916, and for more than two years then last past, willfully, continuedly and obstinately deserted her.
On March 18th, 1919, the petitioner gave to the defendant notice of a motion for an order to dismiss the above-entitled cause as of June 1st, 1918, and thereto attached an affidavit upon which the motion was based, the salient facts in which are that after the filing of the petition in this cause (the first petition) Mr. Bloom, counsel for the petitioner, who made the affidavit, learned that the petitioner had been mistaken in some of the facts given him, whereby the petition would not lie; and that the petitioner had caused a new petition to be filed (the second petition), alleging constructive desertion on the part of the defendant instead of actual desertion, as alleged in the first petition, and that, in answer, the defendant had set up the first petition being undisposed of, in bar of the second suit.
Just why the defendant’s notice is of an application to dismiss the first suit as of June 1st, 1918, I am unaware. The second petition, filed October 30th, 1918, alleges that petitioner was compelled by reason of the defendant’s extreme' cruelty to refuse to further cohabit with him; in other -words, that the desertion commenced on that date, which was two years and one week prior to the filing of the petition. If I should grant the order asked for and dismiss the first petition as of June 1st, 1918, then the
Counsel for the defendant resists the motion upon the ground that there could) be no desertion'by the defendant of the petitioner during the period in which a suit for divorce was pending against him instituted by the petitioner, and relies upon Weigel v. Weigel, 63 N. J. Eq. 677; affirmed on opinion below, 65 N. J. Eq. 398; Johnson v. Johnson, 65 N. J. Eq. 606, and von Bernuth v. von Bernuth, 76 N. J. Eq. 494.
In Weigel v. Weigel the defendant pleaded that- part of the time during which she was alleged to have deserted her husband was occupied by the pendency of her suit against him for divorce for constructive desertion, and that as she could not have cohabited with him pending that suit without condoning the offence, she alleged that the time occupied by her suit should not be counted as part of the desertion. In that case her contention was decided adversely to her, but upon another ground, namely, that her suit was not brought in good faith, but was a fraud on the court, on the law and on the defendant; that, however, is immaterial to the present inquiry. It will, nevertheless, be observed that in the Weigel Geese the contention that the time occupied by the prior divorce case between the same parties could not be computed as any part of the period of desertion alleged hv the petitioner in the then instant case, was made by the de
In the domain of reason it may well bo that the first suit pending between the parties in the case sub jiulice ought to" be no bar to the prosecution of the second suit; but Vice-Chancellor Grey, in the case of Johnson v. Johnson, appears to have decided otherwise. There the petitioner brought suit for divorce against his wife for desertion, and it appeared that each party had previously sued the other for dissolution of the marriage tie, the petitioner for adultery against the defendant, which petition was dismissed, and the defendant for desertion against the petitioner, which also was dismissed; but both of these cases were pending during a portion of the time that the petitioner in the then instant case urged before the court was the period of desertion for which he was entitled to a divorce, and Vice-Chancellor Grey observed (at p. 60S) that no portion of the time during which either of the previous suits between the parties were pending could be comparted in making up the, term of the two years during which the desertion of the defendant must have been willful, continued and obstinate to entitle him to a decree.
In Marsh v. Marsh, 14 N. J. Eq. 315, Chancellor Green held that it is legally improper for the parties to cohabit together during the pendency of a suit Ijy the husband against the wife for divorce on the ground of adultery. And there, as in the Johnson Case, the rule was applied to one who was defendant in the two suits, the then instant one being for desertion and the jn'ior one, which was defeated, for adultery.
In Chipchase v. Chipchase, 48 N. J. Eq. 549, it was held that a wife who is prosecuting an action against her husband for divorce for alleged adultery, cannot maintain that the separation pending such suit is obstinate on the part of the husband. This is a definite decision, to the effect that the party defendant is entitled to the benefit of the doctrine that his separation from his wife pending a suit by her against him is not obstinate.
In Drayton v. Drayton, 54 N. J. Eq. 298, Chancellor McGill held that if a suit for divorce for adultery be brought promptly after the separation of the. accuser from the accused, and in good faith, and be prosecuted with diligence, then in a subsequent suit for desertion by the accused, the time consumed in the former proceeding will not be computed as part of the statutory period necessary to the desertion which will authorize a decree for divorce.
The case sub judien is one for the same cause of action as was the original suit. Therefore, instead of filing a new petition, the petitioner could have applied for and obtained leave to amend her petition in her original suit, by alleging the cause for action set up in the instant case; and this could be dbne at or after the trial as well as before.
The facts are these: In the original petition it is set up that the defendant deserted the petitioner in September, 1912, and continued to do so to the time of filing the petition, October 28th, 1916. In the second petition it is set up that the defendant, in September, 1912, commenced a course of cruel and abusive treatment toward petitioner which 'resulted in petitioner being compelled to cease cohabitation with him (not saying exactly when), and that defendant beat and assaulted her on various occasions, for which she was compelled to have him arrested, and on his promise to do better she resumed cohabitation with him, but on or about October 23d, 1916, he came home in an intoxicated condition and severely beat her, whereupon she again had him arrested and ceased further to cohabit with him, .alleging that within the intent and meaning of our statute the defendant has since the last-named date willfully, continually and obstinately deserted her. It is apparent at a glance that this is the same desertion which the petitioner averred in her first petition. And the case at bar is not the first one in which such mistakes have been made.
The present Divorce act (P. L. 1907 p. 474; Comp. Stat. p. 2021 § 19) provides that the chancellor may permit either party to amend his or her proceedings in the case, either in matters of form or substance, and proceed to give judgment according to the merits of the case. Under this liberal provision the petitioner may apply for leave to amend the petition in the first- suit, which is pending and already referred to an advisory master, and dismiss the second suit, if she shall be so advised. See Metzler v. Metzler and Thomas v. Thomas, supra.
The pending motion to dismiss nunc pro tunc will he denied, but without costs.