174 A. 898 | N.J. | 1934
The petition for divorce in this case was based on the ground of desertion, the desertion occurring in the month of July, 1929, and continuing thence up to the time of filing of the petition in July, 1933. Neither appearance nor answer was filed and the case proceeded ex parte before an advisory master who recommended dismissal of the petition on the ground that a decree of separation from bed and board had been previously granted to the petitioner in the State of New York. A decree of dismissal followed and the petitioner appeals.
We think this decree was wrong and that the authorities relied on for affirmance are inapplicable to the present situation. At the time the petition was filed in the New York court a full two years of desertion had accrued, but under the law of that state the limit of right on the part of the injured party was divorcea mensa et thoro. Her suit for partial divorce was not only the sole relief then available to the petitioner in New York, but it appears from the proofs in the case that she then believed her husband to be a resident of that state.
It is claimed that the action in New York constituted an election of remedies and that the appellant was precluded from thereafter pursuing further litigation. This we think is not so, and even if otherwise, it is doubtful if it would apply to one ignorant of the true facts as to the husband's residence. The rule of election of remedies is that one cannot approbate and reprobate. He cannot treat his rights upon one *52
theory of right and thereafter seek a remedy inconsistent with such prior proceeding. This principle is elucidated in the case of Claron v. Thommessen,
As to the cases relied on by the master. In Kyle v. Kyle,
The master in the court below seems to have held the view in the present case that desertion must not only be a continuing one up to the time of filing the petition in this state, but that the right to divorce must rest, in part at least, on the period immediately preceding the suit, and reliance was placed by him on the case of Myles v. Myles,
When the New York action was begun the full two years had expired and the wife had a remedy in this state for an absolute divorce, but of this remedy she was ignorant because supposing her husband still resident in New York. Being ignorant of the residence of her husband in this state, she sought the only relief available under the law of New York in that state and obtained the decree of separation already set out. It is said in20 Corp. Jur. 35, that "in order to constitute a binding election the party must at the time the election *54 was alleged to have been made have had knowledge of the facts from which the co-existent, inconsistent, remedial rights arose; since any position taken by a party before knowing all the facts should be classed as a mistake and not as an election," and the application of the rule of estoppel in the present case might well be denied on this ground. We prefer, however, to put it upon the fundamental ground that the action in New York, disregarding the knowledge or want of knowledge of the true facts on the part of the wife, did not constitute an election, inasmuch as the two actions are not inconsistent, one with the other, but that the action in this state is for the further relief based upon the same ground as that presented in the New York courts and which incidentally the courts of that state were unable to give.
The judgment is reversed with direction to enter a decree granting the petition for divorce.
For affirmance — None.
For reversal — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, JJ. 14.