Bennett v. Bennett

• Decision Date: 25 June 1901
• Citation: 63 N.J.E. 306,49 A. 501
• Parties: BENNETT v. BENNETT.
• Court: New Jersey Supreme Court

49 A. 501

63 N.J.E. 306

BENNETT

v. BENNETT.

Court of Errors and Appeals of New Jersey.

June 25, 1901.

Appeal from court of chancery.

Bill by Isabella A. Bennett against John W. Bennett to enforce a decree on alimony rendered on a divorce granted in a foreign state. Prom a decree for complainant, defendant appeals. Reversed.

Parker & Van Gelder, for appellant.

S. A. Patterson, for respondent.

VOORHEES, J. The appeal in this cause is taken from a decree of the court of chancery, which, among other things, directs the payment of certain moneys decreed to be paid by the appellant to the respondent by the district court of the Third judicial district of North Dakota. The parties had been residents of New Jersey, were married here, and had children. The husband moved to North Dakota, commenced proceedings for divorce; and the wife entered an appearance in the cause, filed an answer, and was represented by counsel. The court granted a decree dissolving the bonds of matrimony, and directed the husband to pay certain sums of money at certain times therein set forth to the wife for the education, support, and maintenance of their minor children. It gave the wife the custody and control of the children, but directed that the husband be allowed to see them at reasonable times, and that he be permitted to take and keep them from the 1st of July to the 1st of September in each year. A copy of the decree is included in, and makes a part of, the bill of complaint. The relief prayed for was that the defendant be directed to pay to the complainant the moneys decreed to her by the North Dakota court The defendant in his answer, admitted the substantial averments of the bill, but denied that the complainant had shown such right or interest therein as entitled her to the relief of a court of equity, and claimed the same benefit of such objection as though he had formally demurred to the bill of complaint. He then attached a cross bill, in which he prayed for affirmative relief in certain matters connected with the former decree, in case the complainant should be successful in her application, and the demurrer be overruled. The defendant, in effect, demurred to the bill, when he claimed the benefit of the objections set forth by him, as though he had formally demurred thereto. Chancellor Zabriskle, in Veghte v. Water-Power Co., 19 N. J. Eq. 142, said: "This objection, as taken here, is really a demurrer; and is none the less so because written on the same sheet between the paragraphs of the answer, instead of being engrossed and filed as a separate paper." The filing of the cross bill after demurrer to the bill of complaint did not prevent the court from considering whether the bill of complaint was demurrable. A litigant may demur to a part answer to part and plead to a part of a bill. All the modes of defense may be joined, provided each relates to separate and distinct parts of the bill. Mitf. Ch. PI. 106; Story, Eq. PI. 439. The effort of the complainant in this cause was to procure the court of chancery to specifically enforce so much of the decree of the North Dakota court as directed the payment of money. Article 4, § 1, of the constitution of the United States provides: "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." This provision does not make the foreign decree or judgment a record to be enforced without further proceedings in the state to which it is taken; nor does it refer to the remedy or means of enforcing it, but only provides that the facts found in the foreign court upon which the judgment or decree was entered cannot be inquired into by the courts of the sister states. Justice Catron, in D'Arcy v. Ketchum, 11 How. 175, 13 L. Ed. 648, said "that a judgment where the defendant had been served with process concluded such defendant, when sued thereon in another state, from going behind the...