Hoyt v. Hoyt

• Decision Date: 24 October 1917
• Citation: 131 A. 127
• Parties: HOYT v. HOYT.
• Court: New Jersey Court of Chancery

131 A. 127

HOYT

v. HOYT.

Court of Chancery of New Jersey.

Oct. 24, 1917.^†

(Syllabus by the Court.)

Suit by Caroline E. Hoyt against John C. Hoyt for divorce. On application to enter final decree nunc pro tunc. Decree nunc pro tunc entered.

Caroline E. Hoyt, pro se.

WALKER, Ch. On August 8, 1893, the petitioner filed a petition for divorce from her then husband, and such proceedings were had that the late Isaac S. Taylor, Esquire, to whom the cause was referred as special master, took testimony, and in a report dated January 17, 1894, certified that he was of opinion that all the material facts charged in the petition were true, and that a decree of divorce should be made in the case for the cause of desertion. Mr. Flemming (her solicitor) informed the petitioner of this finding of the special master, and said that she should pay $22.56, the special master's fees. This the petitioner did not do, as she did not have the money. She, however, believed her divorce had been granted, and on December 25, 1896, she was married to Martin Wright, a veteran of the Civil War, who died on February 27, 1900. The petitioner has now discovered that no decree of divorce was entered in the cause.

The master's report, although dated January 17, 1894, was not filed until January 17, 1896, just two years afterwards. In the files of the papers in the case is a letter from Mr. Taylor, the master, to the late Vice Chancellor Pitney, in which he acknowledges the receipt of a note from the Vice Chancellor. In this letter Mr. Taylor states that he delivered his report to the solicitors (Flemming & Anderson) on, or possibly the day after, the report was dated (January 18, 1894), and he says that in the then last January (1896) the Chancellor showed him a letter which he had received from the petitioner, complaining about the long delay in her case. He further says in his letter that his fees had never been paid, that he had frequently sent a bill to the solicitors, and that they said they were holding the report because they could get no money from their client. There is another letter in the files, one from Joseph Anderson, of the firm of Flemming & Anderson, dated January 24, 1896, directed to the clerk in chancery, in which he informs him that, as surviving member of the firm, he desires that no order, formal or otherwise, be entered except upon personal application by him, as he did not want to be made liable for any more costs in the matter. Attached to the letter of Mr. Taylor to the Vice Chancellor is a typewritten copy of the form of a letter directed to Mr. Taylor, dated January 28, 1896, the day after the date of Mr. Taylor's letter to the Vice Chancellor. This typewritten copy is undoubtedly a copy of a communication which Vice Chancellor Pitney sent to Mr. Taylor; the Vice Chancellor having undoubtedly lodged the letter and copy with the clerk for preservation among the files. In the copy of the letter apparently sent to Mr. Taylor the Vice Chancellor says that he would decline to advise the decree until the master's fees were paid, and should say that inquiry should be made as to whether the petitioner had paid her counsel enough to cover those fees or not, and, if not, then she must pay them or establish her right to sue in forma pauperis.

The petitioner now applies to enter a final decree of divorce nunc pro tunc, as of the date of the filing of the master's report, January 17, 1896, which is prior to her marriage to Mr. Wright, which took place on December 25, 1896.

The court has power to grant this motion. Mr. Bishop, in his work on Marriage, Divorce, and Separation, vol. 2, § 687, says:

"There may be a nunc pro tunc judgment when the case falls within the principles on which such judgments are allowed in other suits"—citing Mead v. Mead, 1 Mo. App. 247, 254; Webber v. Webber, 83 N. C. 280.

The court in the Mead Case said:

"Since this opinion was written, we have learned that Mr. Mead has died. He was alive, however, when the case was argued and submitted. Under these circumstances the judgment will be entered as of the day on which it was taken under advisement, which was January 28, 1876. Such was the practice of the Supreme Court in the case of the Central Savings Bank v. Shine, 48 Mo. 456, , following the ancient practice in England as laid down in Cumber v. Wane, 1 Stra. 426."

And the court in the Webber Case said:

"It is suggested that the action for a dissolution of the marriage tie, the end and object of which are consummated by death rendering a judgment needless, does not fall under the control of a fiction adopted for other and different purposes. While the suggestion is not without force, we can find no legal ground for its exemption from the operation of a principle applicable to all other actions."

There is nothing in Dunham v. Dunham, 82 N. J. Eq. 395, 89 A. 281, which militates against the entry of a decree for divorce nunc pro tunc on the application of the living petitioner, who was entitled to it at the time it could and should have been granted. The Dunham Case only decided that a pending divorce abates upon the death of either party without surviving interest in anyone, and that a decree nisi of divorce may not be made absolute by a final decree after the death of one or the other of the parties, and which could not have been entered during the lifetime of both. Of course it could not, because the surviving party was not entitled to the decree in the lifetime of the other one. Not so in the case before me; for here the surviving petitioner was entitled to the divorce at and at all...