76 N.J. Eq. 487 | New York Court of Chancery | 1909
The controversy in this case arises ont of a suit for divorce. In order to decide the questions raised it will be necessary to examine the course of pleading and practice which was followed. On October 5th, 1908, the wife filed her petition alleging constructive desertion by the husband on June 2d, 1906. This pleading contained a large number of allegations of fact tending to show that the wife was driven from her home by the cruelty and malicious acts of the husband and by threatening language to her and the two children of the marriage. On October 21st, 1908, she filed an amended petition in which she repeats and
It thus appears that the desertion of which the wife complained had ripened into a complete and suable cause of action at the time of the filing of(her original petition; and it will be likewise observed that at that time the desertion of which the husband complains had not ripened into á complete and suable cause of action, but that it matured thereafter and before the
There are other questions incidental thereto, as—first, whether jurisdiction of the cross-petition may be acquired by this court under the present Divorce act except by personal service of process upon the original petitioner; and second, whether the time during which the wife’s petition for divorce was pending can be computed as part of the two years’ desertion necessary to give validity to the husband’s cause of action?
In Fuller v. Fuller (1886), N. J. Eq. (14. Stew.) 198, there was an application made for leave to file a supplemental answer for the purpose of setting up a matrimonial offence committed by the petitioner since the filing of his original petition.
This rule (206a) has a bearing upon the second question herein above stated and also on the question of jurisdiction. It unifies the practice in divorce cases with that prescribed in cases arising under the general equity jurisdiction of the court. Its terms include all defendants, non-resident as well as resident. It dispenses with the actual service of process and provides a short and simple method of reaching an issue. The defendant under this rule
“may set up in the answer matter which would be a proper subject of a bill of complaint or a petition, and may obtain such relief thereon as he or she would be entitled to upon a separate bill or petition against the complainant or petitioner,” &c.
In the case at bar the requirements of this rule seem to have been met. The defendant did set up in his answer matter which would have been a proper subject of a petition, and he seeks to obtain the same relief thereon that he would have been entitled to on the same facts if he had filed an independent petition. He has alleged and proved a desertion by the wife which had ripened into a cause of action at the time of the filing of the cross-petition. Tinder the authority of Fuller v. Fuller, supra, these facts are competent as a defence and are admissible in evi
Counsel have cited cases from other jurisdictions which illustrate the application of the argument to pertinent facts. In Martin v. Martin, 33 W. Va. 695; 11 S. E. Rep. 12, the petitioner sought a divorce on the ground of adultery. The defendant answered and filed a cross-bill praying for a divorce against the petitioner on the ground of desertion, although at the time of the filing of the original bill the statutory period of desertion had not elapsed. It had elapsed, however, before the defendant filed his cross-bill. This is a state of facts precisely similar to those in this case. The court granted a decree on the cross-bill, stating in the opinion that “At the time the original bill was filed by the plaintiff .the period of three years had not elapsed since the said plaintiff left the house of the defendant, and when that time did elapse he found it necessary to file his cross-bill in order to then allege willful abandonment and desertion of himself by the defendant for three years as a ground for divorce from the said plaintiff. * * * This cross-bill was filed by said defendant for the purpose of obtaining relief which he could not have obtained by an answer in the original suit because at the time the said suit was brought the circumstances did not exist which would entitle him to relief, and this made the cross-bill necessary in order that this might be alleged and full relief might be granted the plaintiff in said cross-bill touching the matters of the original bill.” In Neddo v. Neddo, 56 Kan. 507; 44 Pac. 1, the court held in a case where a cross-petition was filed setting up abandonment of the defendant by the plaintiff that the period of abandonment necessary to give the cross-petitioner a right of action did not terminate with the commencement of the original action, but that it extended to the time of the filing of the cross-petition. The obvious reason is that it is absurd that the defendant should be
If it be objected that the filing of the cross-petition and amended answer rests wholly in the consent of the parties by reason of the stipulation that was entered into,' and that no divorce can be granted in this case because of the well-settled rule that no divorce will be granted upon any consent of the parties, it may be said that if application had been made to the court for leave to file these pleadings leave would have been undoubtedly granted as was done in the case of Fuller v. Fuller, supra, and in the very well-considered case of Wadsworth v. Wadsworth, 81 Cal. 182. The stipulation therefore must be treated not as a consent to a divorce decree nor as a consent to confer jurisdiction, but rather an agreement by counsel which merely avoids the necessity of the more formal application to the court.
It is manifest that some portion of the time relied upon by the husband for the accrual of his cause of action was occupied and taken up by the original suit brought by the -wife—that is, from October 5th, 1908, the day of the filing of her petition, to March 20th, 1909, the day on which the husband had a right to file an independent petition. It was so held in Weigel v. Weigel, 63 N. J. Eq. (18 Dick.) 677; affirmed, 65 N. J. Eq. (20 Dick.) 398, and in Johnson v. Johnson, 65 N. J. Eq. (20 Dick.) 606. If this rule were applied to this case there would be a considerable reduction from the time during which the husband’s cause of action was in process of maturing, and his cross-petition would have been prematurely filed. There are many cases to this effect, most of which are collected by Yice-Chancellor Grey in the Weigel Case. There is, however, an exception to this rule which the vice-chancellor comments upon in the Weigel Case within which the ease at bar clearly comes, and’that is that the petitioner cannot insist upon the enforcement of the
Having found the facts in favor of the defendant on his cross-petition, it remains only to state, in conclusion, that there is nothing in the law which stands in the way of granting him the relief prayed for in the cross-petition, and I will advise a decree in his favor.