Garrett v. Garrett

Decision Date19 July 1916
Docket NumberNo. 37/154.,37/154.
Citation98 A. 848
PartiesGARRETT v. GARRETT.
CourtNew Jersey Court of Chancery

(Syllabus by the Court.)

Suit by Nicholas Garrett against Anna Garrett Heard on exceptions to master's report. Exceptions overruled, but petition dismissed, with permission to apply to open the case for the taking of further testimony.

Charles E. Hendrickson, Jr., of Jersey City, for petitioner and exceptant.

WALKER, Ch. The petitioner sued for divorce from his wife on the ground of adultery alleged to have been committed by her on October 12, 1913, with a man named Preddie, at No. 128 West 139th street, in the city and state of New York. The defendant did not answer, and the master to whom the cause was referred reported adversely to the petitioner, who filed three exceptions to the master's findings.

The first exception is to the report by the master that it was proved to his satisfaction that the petitioner and defendant lived together as husband and wife in Troy and also in the city of New York from the time of their marriage until the petitioner left the defendant because he suspected her of being unduly intimate with Preddie, the date of which he appeared to be unable to fix, even the year in which he left her not being remembered by him; four or five years before was the nearest he could come to it. The ground of objection to this much of the report is that it appears by the deposition of the petitioner that he left his wife about four years before because he found out that she was not true to him, saying elsewhere that he did not remember the month, and that it was about six years before. He said he thought it was about a year after they separated that he met his brother-in-law, who told him that she (the petitioner's wife) was living with Preddie at No. 128 West 139th street, New York City; that he went there and found out that it was true; that he went there, saw her personally, and asked if she was living with Preddie, and she said that she was, and did not want people to know that she was living the way she was; that she did not want people to know that Preddie was not her husband. Nothing of a controlling character is involved in the question presented by this exception. It may be dismissed, with the assertion that it is the petitioner's uncorroborated testimony.

And it is an inflexible rule in this state that a divorce will not be granted upon the uncorroborated testimony or admission of a party to the suit. Not only does this apply to the cause, but to every element in the proofs necessary to sustain it. Williams v. Williams, 78 N. J. Eq. 17, 78 Atl. 693; Hague v. Hague, 96 Atl. 579.

The second exception is to the finding of the master that it was not proved that the defendant committed adultery with Preddie at the time and place alleged in the petition, although it was proved to his satisfaction that the defendant committed adultery with Preddie at that address in the month of November following, and that she was then living with Preddie as his wife at the same place. As ground for this exception the petitioner insists that it appears by the deposition of his solicitor that the defendant admitted to him that she went to live with Preddie about five years before the deposition was taken, and said that she had lived with him ever since, which showed that she was living with Preddie in October, 1913, and that the master should have reported that she committed adultery with him on the date alleged in the petition. At best for the petitioner, the evidence of his solicitor merely recites the confession of a guilty wife, which, in and of itself, is not sufficient groundwork upon which to rest a divorce. A defendant's confession of guilt in a divorce case is not such evidence as, by the law of this state, will support a decree. Howard v. Howard, 77 N. J. Eq. 186, 78 Atl. 195. Such confessions to be evidence, must be corroborated, as to the fact or facts confessed, and not as to the confession being made. Kloman v. Kloman, 62 N. J. Eq. 153, 156, 49 Atl. 810. The solicitor's deposition relates to a conversation he had with the defendant, who called at his office in response to a letter from him, and introduced herself, and, in answer to questions propounded by him, made a detailed and circumstantial confession about leaving her husband and going to live with Preddie, all of which the solicitor repeats in his deposition. Now, as a divorce cannot be granted upon the uncorroborated testimony of the husband as to his wife's guilt, nor upon her uncorroborated confession of that guilt, it follows necessarily that the uncorroborated testimony, plus the uncorroborated confession, amount to no more than each standing alone, and are not legal evidence. True, both the testimony and the confession are admissible in evidence, but each must be corroborated in order to be effective as evidence in the cause.

There is nothing in the recent case of Hague v. Hague, supra (Court of Errors and Appeals) which militates against this view. In that case, as in Schaab v. Schaab, 66 N. J. Eq. 334, 57 Atl. 1090, the defendant was subpoenaed as a witness and examined on behalf of the petitioner. These were divorce cases, but what the defendants said under oath which went to prove the petitioners' case amounted to confessions of guilt made under oath. In each of these cases a divorce was denied in the Court of Chancery, and that court's decree in each was reversed. These reversals, however, were not based upon any ruling that the testimony given by the defendants alone and without corroboration was sufficient. On the contrary, an examination of each of these cases shows that the testimony given by the defendants was corroborated. In the Hague Case, in the syllabus written by Mr. Justice Trenehard, who delivered the opinion of the court, it is laid down that the wife's testimony was corroborated by that of her husband and another witness, and quotations from the evidence are made in the body of the opinion for the purpose of justifying the statement made in the syllabus. In the Schaab Case it was stated by Mr. Justice Fort, who wrote the opinion, that the defendant's testimony was admissible, as to the facts and circumstances concerning which she testified, and that it was entirely corroborative of the testimony of the detectives. This being so, the testimony of the detectives was, of course, entirely corroborative of hers. The law to be deduced from the cases on the question before me is that defendants in divorce cases may be called as witnesses by the petitioners, but that their testimony is insufficient for the granting of a divorce unless corroborated as to the fact or facts confessed.

The third objection, complaining that the master reported that, as it was decided by this court in Rapp v. Rapp, 67 N. J. Eq. 236, 58 Atl. 167, desertion by the husband, which existed during the period fixed by the statute as ground for an absolute divorce, appearing by his own testimony, was a bar to a divorce against the wife for subsequent adultery, though not so pleaded, he, the master, was constrained to report that the petitioner was not entitled to the relief prayed for in his petition, and that it should be dismissed. The argument made against this finding and...

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18 cases
  • Crowell v. Crowell
    • United States
    • New Jersey Superior Court — Appellate Division
    • December 7, 1954
    ...& A. 1916). Not only does the rule apply to the cause, but to every element in the proofs necessary to sustain it. Garrett v. Garrett, 86 N.J.Eq. 293, 98 A. 848 (Ch.1916); Howes v. Howes, 125 N.J.Eq. 272, 4 A.2d 282 (E. & A. 1939); Cusick v. Cusick, 129 N.J.Eq. 82, 18 A.2d 292 (E. & A. The ......
  • Munger v. Mlinger
    • United States
    • New Jersey Supreme Court
    • September 19, 1941
    ...A. 310; McLain v. McLain, 91 N.J.Eq. 530, 116 A. 701; Hague v. Hague, 85 N.J.Eq. 537, 96 A. 579; Parmly v. Parmly, supra; Garrett v. Garrett, 86 N.J.Eq. 293, 98 A. 848. And the evidence in this behalf is not altogether convincing. Indeed, the course of conduct cited by defendant in refutati......
  • Jacobs v. Jacobs
    • United States
    • Maryland Court of Appeals
    • May 19, 1936
    ...293, 98 A. 848; 9 R. C.L. 435). While the corroboration must extend to every element necessary to justify the relief sought (Garrett v. Garrett, supra; 9 R.C.L. 436), it need in itself be sufficient to warrant that relief (9 R.C. L. 435), nor need it go to every particular statement found i......
  • Lundy v. Lundy
    • United States
    • Arizona Supreme Court
    • January 4, 1922
    ... ... 230] is that ... a divorce will not be granted "upon the uncorroborated ... testimony or admissions of a party to the suit." In ... Garrett v. Garrett, 86 N.J. Eq. 293, 98 A ... 848, the court applied this rule, and in doing so used ... language which so well expresses my views that ... ...
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