Duerner v. Duerner.
Decision Date | 03 September 1948 |
Docket Number | No. 244.,244. |
Citation | 61 A.2d 307 |
Parties | DUERNER v. DUERNER. |
Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Court of Chancery.
Suit in equity by Albert A. Duerner against Josephine Duerner for divorce. From a decree dismissing the petition, petitioner appeals.
Affirmed.
Gilhooly & Yauch, of Newark (Edward J. Gilhooly, of Newark, of counsel), for petitioner-appellant.
Matthew Krafte, of Irvington, for defendant-respondent.
This is an appeal from the dismissal of a petition for divorce. The charge was adultery. The offensive acts were alleged to have been committed in the month of March, 1926, twenty years prior to the filing of the petition on July 24, 1946. The petition was dismissed because the guilt of the defendant was known to petitioner and he offered no adequate explanation for his failure to sue for a dissolution of the marriage for more than twenty years. Appellant contends that the delay in bringing his suit should have been set up in the answer and failure to do so deprived respondent of that defense; that the petition was improperly dismissed and on the proofs he was entitled to a decree.
The contention of appellant disregards the philosophy of the Act and procedure in divorce matters. The pertinent portion of the Divorce Act provides:
‘Proceedings in any suit commenced under this chapter shall not be set aside, annulled or made void for any defect in matter of form or for any mistake or omission not affecting the real merits of the cause, and the Chancellor may permit either party to amend his proceedings in the cause, either in matters of form or substance, and proceed to give judgment according to the merits of the case.’ R.S. 2:50-20, N.J.S.A.
‘ [1] It has been well said that in the granting of divorces, the state, as well as the parties, is interested, and that the public is represented by what is called ‘the conscience of the court,’ and a judicial investigation of all such cases, particularly when they are ex parte, should be pursued with the utmost vigilance for the purpose of determining the bona fides of the application.' Griffiths v. Griffiths, 69 N.J.Eq. 689, 60 A. 1090, 1091. Cited in Henry v. Henry, 79 N.J.Eq. 493, 82 A. 47, affirmed 81 N.J.Eq. 512, 86 A. 1102, wherein it is also stated that the analogy of ordinary actions cannot be applied.
It follows that the failure of the defendant to set up in her answer the delay in bringing the suit cannot deprive the court of its jurisdiction to dispose of the case on the merits and in the public interest.
On the merits, the Advisory Master found:
This Court will give great weight to the findings of an Advisory Master who has an opportunity to observe and consider the conduct and demeanor of witnesses. Cartan v....
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