Kempson v. Kempson

• Citation: 61 N.J.E. 303,48 A. 244
• Parties: KEMPSON v. KEMPSON.
• Decision Date: 09 February 1901
• Court: New Jersey Court of Chancery

48 A. 244

61 N.J.E. 303

KEMPSON

v. KEMPSON.

Court of Chancery of New Jersey.

Feb. 9, 1901.

Suit by Helen A. Kempson against St. George Kempson to restrain defendant from procuring a divorce. Injunction granted. Motion to punish him for contempt. Granted.

Alan H. Strong, for the motion.

Robert Adrain, opposed.

PITNEY, V. C. The parties are husband and wife, and were married in 1882, and up to January 1, 1898, had always lived together as man and wife in the state of New Jersey, residing either at Perth Amboy, or at Metuchen, both in Middlesex county. The complainant has borne the defendant nine children, the youngest of whom was born in January, 1898. The husband was engaged in publishing two or three newspapers at Perth and Metuchen, and also in editing and publishing an Amboy insurance journal in the city of New York. He had an office in a building No. 173 Broadway, on the northwest corner of Cortlandt street and Broadway. The conduct of the insurance journal carried him away from home a great deal, but he maintained his wife and family and home as above stated, either at Perth Amboy or Metuchen. In the years 1898 and 1899 it was at Metuchen. On March 29, 1880, he commenced a suit in the district court of the Fourth judicial district, in the county of Richland, N. D., against his wife for divorce from the bonds of matrimony, and caused the complaint and summons therein to be served upon his wife at their residence at Metuchen on the 4th of April, such service being made by a Mr. Bennett, of New York City. On April 10, 1899, the complainant herein exhibited to a vice chancellor her bill in this cause, with affidavits annexed, setting forth the commencement by the defendant herein of the divorce proceedings in North Dakota, and that her husband had no residence whatever in that state, and other facts and circumstances, with a prayer for an injunction against his proceeding therein, upon consideration of which the vice chancellor on that day advised an order that the defendant show cause at the chancery chambers in Jersey City on the 24th day of April then instant, at 10 o'clock in the forenoon, why an injunction should not issue according to the prayer of the bill. The order contained this further clause: "That the defendant, his counsel, attorneys, or agents, in the meantime, and until the further order of this court in the premises, desist and refrain from all further proceedings in the action instituted by him against the complainant in the district court," etc., "of North Dakota, to obtain a divorce from the bonds of matrimony, and from commencing or prosecuting any other proceeding to obtain a divorce in said state." The order contained leave to serve it upon the defendant wherever he might be found. The bill asked for no relief, except an injunction against the Dakota suit. On April 24th, the return day of the order, an affidavit was filed, made by John B. Martin (since deceased) before a notary public of New Jersey, in which he swears that on the 22d day of April, 1899, he served a true copy of the bill and affidavits, and of the said order to show cause, in the above-entitled cause, upon the defendant, St. George Kempson, by handing the same to him at his office, No. 173 Broadway, in the city of New York.

I stop here to say that the evidence shows clearly enough that the insertion of the words "twenty-second" in that affidavit was a mistake. That the time when it was served, if at all, was the 21st of April.

Also at that time one Silas H. Dalrymple made affidavit that he served a copy of the bill and affidavits and order to show cause upon the firm of Bessie & Bennett, attorneys for the defendant, Kempson, in his suit against complainant in North Dakota, by serving the same upon Mr. Bennett personally at his office, No. 145 Nassau street, in the city of New York. It will be remembered that it was Mr. Bennett who served the Dakota papers on Mrs. Kempson. But no other proof was made of the fact that Bennett was the partner of Bessie, who alone, so far as the record shows, appeared in the Dakota court After consideration, on the 20th of April, as of the 24th, it was ordered that an injunction do issue. The reasons for that are reported in Kempson v. Kempson, 43 Atl. 97, 53 N. J. Eq. 94. On the 28th of April, 1899, an injunction was issued, indorsed by the clerk that it was returnable on the 29th of May, 1899. On that day an order was made in the cause extending the time of service, and in pursuance of that the indorse'.' date of the return was changed from May 29th to June 12th. Annexed to the original injunction on file is an affidavit made by Christopher Meshrow, of Perth Amboy, to the effect that he served the writ of injunction on Mr. Bennett, of the firm of Bessie & Bennett, on the 1st day of May, 1899, and that on the 31st day of May he served the writ upon the defendant at his office, No. 173 Broadway, New York, by showing him the original and handing him a certified copy thereof. A subpoena was issued in that suit on April 25, 1899, returnable May 8, 1899, and returned not served, and an order of publication was taken May 9, 1899, returnable July 10, 1899. Proper proof is made by affidavit of publication of a proper notice in the newspaper mentioned, and also proof by the solicitor of the complainant that he had made inquiry for the residence and post-office address of the defendant, and that he found that his post-office address was No. 173 Broadway, New York City, and that he mailed a notice to him in proper form and in proper time. No decree pro confesso appears to have been taken or appearance entered in the cause. On November 26, 1900, the complainant presented a petition in the cause, setting forth the former proceedings, and that, notwithstanding the injunction of this court, the defendant had proceeded and had obtained a decree for absolute divorce against the complainant in the court at Wahpeton, N. D., on October 4, 1899, and prayed an attachment against the defendant for contempt in disobeying the injunction, and for leave to file a supplemental bill. Thereupon, on the same 26th day of November, an order was made that an attachment against the defendant do issue, and that it be indorsed for bail in the sum of $3,000, and that the complainant have leave to file a supplemental bill as prayed. An attachment was duly issued, the defendant arrested, and, being unable to give bail, he was retained in custody by the sheriff of Middlesex county. On December 18th an order was obtained by complainant to file interrogatories, and they were filed accordingly, and duly answered. The substance of the answers was that defendant denies that he was served with a copy of the order to show cause why an injunction should not issue, and he denies that he was served with a copy of the injunction or shown the original. He admits that he had heard of the injunction not long after it was issued, by common rumor on the street, and that he proceeded and obtained a decree. Proofs were then entered into before a master to contradict the answer of the defendant, and upon those proofs, and the pleadings, affidavits, and other papers on file in the cause, which latter were distinctly offered and received in evidence at the hearing, the motion came on to be heard.

The counsel for the defendant, in a masterly argument, presented three grounds for the discharge of his client: First, that the defendant was not served with either the order to show cause or the injunction, and that such notice as he actually had of it was not sufficient to place him in contempt for failure to obey it; second, that jurisdiction of his person was never obtained by service of process within the state, and hence service of either the order or writ, or both, out of the state, was a mere nullity, because the court had acquired no jurisdiction to make any order against him; third, that, the complainant in fact waived her rights under the injunction, directed the present suit to be discontinued, and consented that the Dakota suit should proceed.

The learned counsel seemed not to rely with much confidence upon the second ground. It, however involves an important question, and has received careful consideration. In determining it I think it important to ascertain the status of the citizenship of the defendant in April and May, 1899, the time of filing the bill and taking the proceedings in question.

The affidavits annexed to the bill, taken in connection with the facts elicited by the examinations before the master for the purpose of the present application, tend strongly to show that the defendant had not lost his previously acquired domicile in this state,—had not acquired any new domicile. The evidence in favor of such change of domicile is no stronger than that in the Streitwolf Case, dealt with by me and by the court of errors and appeals, as reported in 58 N. J. Eq. 563, 41 Atl. 876, 43 Atl. 683. It was not as strong as that in the Dumont Case, reported in (N. J. Ch.) 45 Atl. 107; for in the latter case the husband actually remained in Dakota, plying his trade as a Jeweler, during the three months required to give the court jurisdiction. Here the defendant's business and business interests were all in New Jersey and New York City. His domicile was, as we have seen, in New Jersey. He had an office in the city of New York, where he sometimes slept when the exigencies of his business required it. His business also required much travel, and frequent visits to distant cities. He never changed or abandoned his business, or any part of it, made no arrangements for permanent absence, and, although he was not within reach of personal service when process of subpoena was issued, he was in New York City, at his office there, and was in this state more or less during the currency of the three months from December 29, 1898, to March 29, 1899, which constituted the three months' residence in Dakota upon which his right to proceed there was...