Kantor v. Kessler
| Decision Date | 04 January 1945 |
| Docket Number | No. 30.,30. |
| Citation | 132 N.J.L. 336,40 A.2d 607 |
| Parties | KANTOR v. KESSLER et al. |
| Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Supreme Court.
Action by Sol Kantor against Henry B. Kessler and others to recover for an alleged conspiracy on part of defendants to give false testimony against plaintiff in a prior divorce action instituted against plaintiff and against whom a decree was entered. An order striking the complaint was affirmed by the Supreme Court, and plaintiff appeals.
Affirmed.
1. A defendant in a suit in the Court of Chancery, against whom a decree is entered, may not thereafter maintain an action at law against witnesses who testified against him in the Cnancery proceeding, upon a charge of conspiracy to give false testimony against him.
2. A witness who gives false testimony is liable to criminal prosecution but is not subject to a civil action by one against whom he testifies.
3. The cause of action attempted to be set out in the complaint in this case amounted to a collateral attack upon a decree of the Court of Chancery which is still in full force and effect, and, therefore, may not be maintained.
Sol Kantor, pro se.
Kessler & Kessler and William L. Vieser, all of Newark, for respondent Henry B. Kessler.
This appeal is from a judgment of the Supreme Court following the entry of an order by Judge Oliphant, sitting in the Middlesex Circuit, striking plaintiff's complaint on the ground that it fails to set forth a legal cause of action and that it constitutes a collateral attack upon a decree of the Court of Chancery of New Jersey entered in a certain cause wherein Carolyn Kantor was petitioner and the plaintiff herein was defendant.
In his complaint plaintiff-appellant seeks damages against the defendants-respondents for conspiring to give false testimony and for falsely testifying in said action brought by Carolyn Kantor against appellant, alleging that, by reason of such false testimony, the marriage between plaintiff-appellant and said Carolyn Kantor was dissolved.
There is no precedent in this State, but it has been uniformly held in other jurisdictions that such actions cannot be maintained. 12 A.L.R. 1264; 48 C.J. 918; 34 C.J. 566; 41 Am.Jur. 44; Shultz v. Shultz, 136 Ind. 323, 36 N.E. 126, 43 320.
In Godette v. Gaskill, 151 N.C. 52, 65 S.E. 612, 24 L.R.A.,N.S., 265, 134 Am.St.Rep. 964, the controlling reasons are well stated, citing authorities, as follows:
‘(1) There was no precedent for such action, and, indeed, the precedents were against it. (2) It ‘would overhale,’ as Chancellor Kent says, in Smith v. Lewis, 3 Johns. [N.Y., 157], 166, 3 Am.Dec. 469, the decision of the former case to which the plaintiff in the new action had been a party. We think there is a third reason, in that it would multiply and extend litigation if the matter could be re-examined by a new action between a party to the action and a witness therein; and, more than that, witnesses would be intimidated if their testimony is given under liability of themselves being subjected to the expense and annoyance of being sued by any party to the action to whom their testimony might not be agreeable. It would give a great leverage to litigants to intimidate witnesses.
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