Grant v. Grant

• Decision Date: 24 December 1914
• Docket Number: No. 37-411.,37-411.
• Parties: GRANT v. GRANT.
• Court: New Jersey Court of Chancery

92 A. 791

84 N.J.Eq. 81

GRANT

v. GRANT.

No. 37-411.

Court of Chancery of New Jersey.

Dec. 24, 1914.

(Syllabus by the Court.)

Suit by Robert M. Grant against Margaret Clara Grant. On application of defendant to open decree nisi and for leave to defend. Application granted in part.

Chauncey G. Parker, of Newark, for petitioner.

Peter W. Stagg, of Hackensack, for defendant.

LEWIS, V. C. This is an ex parte divorce case. The defendant was personally served in New York with notice of an order of publication and a copy of the petition, but did not file an answer, and an order of reference was subsequently made in due course to a special master of the court to ascertain and report as to the truth of the allegations of the petitioner's petition and his opinion thereon. The master was attended by the solicitor of the petitioner and took the depositions of witnesses produced before him, which he returned with the exhibits offered, together with his report, in which he recommended that a decree of divorce should be made pursuant to the prayer of the petition. Thereafter a decree of divorce nisi in favor of the petitioner and against defendant was entered. Before the six months' period limited for showing cause against this decree expired, the defendant asked leave to open it, to the end that she might be let in to defend the cause, denying the commission of the adultery charged against her and asserting that she consulted a lawyer after service upon her, but that he did not care to undertake the defense because she had no money with which to pay him, and that she was not aware of the fact that her husband could be compelled to provide her defense under the compulsory order of the court. This latter statement is undoubtedly untrue, as appears from affidavits submitted on this motion; and, too, her adultery appears quite abundantly proved in the depositions taken ex parte, but this is not conclusive against her on this application.

In deciding the matter under consideration, it will not be necessary to review any of the numerous cases in this and other states where defaults in divorce cases have been opened even after a final decree has been pronounced. Here is a case where the divorce is not consummate, but only inchoate; the decree nisi not having the attribute of finality.

The position of the public, in divorce cases, represented sometimes by counsel and always by the court, is well stated in Bishop on Marriage, Divorce and Separation (volume 2, § 663) as follows:

"The public, which we have seen to be a party in all divorce suits, occupies a unique position, sometimes embarrassing to the court. It does not ordinarily appear by counsel, and when without counsel does not plead. As against this party when only thus represented by what is called the conscience of the court, the plaintiff is entitled to the decree on his case being duly and fully proved. But this party, unlike the others, never loses a right by laches; and so, whenever a defense comes out in the evidence, whether alleged or not, it is fatal to the proceeding. A maxim in these suits, therefore, is that a cause is never concluded as against the judge; and the court may, and to satisfy its conscience sometimes does, of its own motion, go into the investigation of facts not contested by pleadings."

By reason of the public interest in a divorce case, says the same learned author (volume 2, § 669), the court should be especially inclined to set aside a default And in 14 Cyc. p. 714, it is stated that:

"Since a judgment by default is not favored in divorce suits, the courts are especially inclined to interpose by opening or setting aside such a judgment and giving defendant a day in court so that the merits of his defense may be passed upon, under such terms and conditions as to the payment of costs and alimony as to the court may seem proper. * * * It has been said that the rule that a default will not be...