Fodor v. Kunie

• Decision Date: 09 December 1920
• Docket Number: No. 48/13.,48/13.
• Parties: FODOR v. KUNIE.
• Court: New Jersey Court of Chancery

112 A. 598

FODOR

v. KUNIE.

No. 48/13.

Court of Chancery of New Jersey.

Dec. 9, 1920.

(Syllabus by the Court.)

Suit by Emmanuel Fodor against Julia Kunie to annul a marriage. On application to amend petition. Application denied, and petition dismissed.

George Kemeny, of Perth Amboy, for petitioner.

WALKER, Ch. The petition in this cause alleges that on January 24, 1920, a form or ceremony of marriage took place between the petitioner and the defendant at Perth Amboy, at which time the defendant was incapable of consenting thereto, being then an infant under the age of 16 years, and under the statute incapable of giving her consent to the marriage; that petitioner was ignorant of the defendant's incapacity at the time of the marriage, and was not made cognizant thereof until afterwards, namely, on February 18, 1920; that the defendant was never capable of ratifying the marriage by reason of her being under the age of 16; and that the incapacity continued and the marriage had not been in any wise ratified by the defendant. Petitioner prayed that the marriage be declared by decree of this court to be null and void for the cause mentioned, pursuant to the statute. The defendant was served with process of citation and a copy of the petition, but did not answer. Subsequently an order of reference to a special master was made in due form. Testimony was taken before the master, who reported that the defendant was capable of consenting to the marriage, being of the age of 14 years, and the suit not being brought by her, but by the husband, the petition could not be sustained, that the petitioner is not entitled to the relief prayed, and he recommended that the petition be dismissed.

Motion is now made for an order that the petitioner have leave to amend the petition as he may be advised, with provision for service of a copy of the amended petition including 20 days' time limited for the filing of an answer thereto after service. The character of the amended petition intended to be filed is indicated by a draft thereof submitted with the motion. It avers the performance of the ceremony of marriage, and then alleges that at the time of the marriage the defendant fraudulently represented herself to be 18 years of age, when in fact she was 13; that petitioner was ignorant of the defendant's true age at the time of the marriage, and was not cognizant thereof until February 18, 1920; that the alleged pretended marriage had never been consummated. The prayer is that the marriage may be decreed to be null and void for the cause mentioned "pursuant to the statute in such case made and provided." This last is evidently a mistake, because the statute gives no power to the court to annul a marriage for fraud inducing the contract. The case set up in the draft of proposed amended petition is an appeal to the general jurisdiction of equity dissociated from any statutory power. And plainly the pending motion is intended as an application to the court to change the case from the statutory one to one under the jurisdiction exemplified in the late cases of Davis v. Davis, 90 N. J. Eq. 158, 106 Atl. 644, Bolmer v. Edsall, 90 N. J. Eq. 299, 106 Atl. 646, and Ysern v. Horter, 110 Atl. 31.

Amendment in practice is the correction, by allowance of the court, of an error committed in the progress of a cause. Bouv. Law Diet. (Rawle's Rev.) vol. 1, p. 138. Amendments are allowed in equity with great liberality. Codington v. Mott, 14 n. J. Eq. 430, 82 Am. Dec. 258; Seymour v. Long Dock Co., 17 n. J. Eq. 169. But the doctrine has not been extended so far as to permit the substitution of an entirely different case from that made by the original bill. In Codington v. Mott, supra, at page 434 of 14 N. J. Eq. (82 Am. Dec. 258), Chancellor Green observed that Lord Redesdale, in Deniston v. Little, 2 Sch. & Lef. 11, note, said that he knew of no case which allows an amendment in order to enable the party to make a new case, and concludes by saying that the proper practice, where the complainant has mistaken his case, is to dismiss the bill without prejudice to a new one. In Berla v. Strauss, 74 N. J. Eq. 678, 75 Atl. 763, Vice Chancellor Howell held that a bill by a surviving partner in his own name to declare and enforce a resulting trust could not be changed by amendment to a bill for accounting exclusive of the theory of such trust; that that would require fundamental changes which should be asserted only by a new and original bill. This case was affirmed, 76 N. J. Eq. 275, 74 Atl. 518, on other ground, but without criticism of this one. It may not be out of place to observe that amendments in chancery differ from those at law, for, under the Practice Act, a court of law may by amendment, upon terms, permit the statement of a new or different cause of action in a complaint or counterclaim (Thompson v. Peppier, 91 N. J. Law, 160, 161, 102 Atl. 379), while the power of amendment in chancery has been evolved as a matter of practice, and is not regulated by statute, except to provide that amendments in that court may be made on terms (Comp. Stat. p. 438, § 77), which, by the way, is an Inherent power, and the statutory provision is merely declaratory.

Amendments must be germane; that is, akin or closely allied to the pleading amended. Now, this suit was evidently brought under the Divorce Act. P. L. 1907, p. 474, § 1, subd. 5. It could have been brought under none other, because neither at common law nor by statute, except the statute mentioned, could a suit have been instituted to annul this marriage because the girl was under 16, and that suit could be brought only by the wife, not by the husband. Clearly the case proposed to be made by the amendment, namely, an allegation that the girl fraudulently concealed from the petitioner the fact that she was only 13 years of age at the time of the marriage, is in no way related to the statutory proceeding unwarrantably instituted by the petitioner. This is not all. As at common law a girl is...