Moot v. Moot
| Decision Date | 25 February 1915 |
| Citation | 108 N.E. 424,214 N.Y. 204 |
| Parties | MOOT v. MOOT. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Third Department.
Action by Richmond D. Moot against Margaret A. Moot. From an order of the Appellate Division (150 N. Y. Supp. 1098), affirming an order settling the issues in an action of divorce for trial by jury, defendant appeals by permission. Affirmed.
The Appellate Division certified the following questions:
‘1. Is that portion of rule 31 of the General Rules of Practice which reads as follows, viz.: -valid when applied to the trial by a jury of the issues of adultery in an action for absolute divorce?
Alfred L. Becker, of Buffalo, for appellant.
John Lord O'Brien, of New York City, for respondent.
[1][2] The order of the Special Term which has been affirmed by the Appellate Division, and which this permitted appeal brings up for review, granted an application for the settlement of the issues relative to the alleged adultery of the defendant, and directed that they be submitted to a jury for trial, notwithstanding that the motion therefor was not made within the time prescribed by rule 31 of the General Rules of Practice as amended in 1910. This was, in effect, a decision that the moving party was not in default, because the rule was invalid. Three out of the four Appellate Divisions have asserted its invalidity; that in the Second department in Halgren v. Halgren, 160 App. Div. 477,145 N. Y. Supp. 987, that in the Third department in the present case, and that in the Fourth department in Stafford v. Stafford, 165 App. Div. 27,150 N. Y. Supp. 212. In the First department, on the other hand, the rule has been upheld. Cohen v. Cohen, 160 App. Div. 240,145 N. Y. Supp. 652.
Prior to its amendment, the rule was considered by the old General Term of the Fifth department in Conderman v. Conderman, 44 Hun, 181, decided in 1887, when the rule read as follows:
‘In cases where the trial of issues of fact is not provided for by the Code, if either party shall desire a trial by jury, such party shall, within ten days after issue joined, give notice of a special motion to be made upon the pleadings, that the whole issue or any specific questions of fact involved therein be tried by a jury.’
The court was an able one, two members of which were afterwards judges of the Court of Appeals (Smith, P. J., and Haight, Bradley, and Lewis, JJ.). A motion for an order directing the issues in a divorce suit to be tried by a jury had been denied on the ground that the application was not made within the time prescribed by rule 31, without prejudice to a renewal of the motion addressed to the discretion of the Special Term. The General Term reversed the order, holding that the constitutional right to a trial by jury in such cases could not be modified or limited by a rule of practice so as to reduce it to a matter in the discretion of the court if not made within 10 days after issue joined; and, furthermore, that the rule could not have the effect to produce a waiver of the right if not exercised within such limited time.
The measure of the right of trial by jury preserved by the state Constitution (article 1, § 2) in actions for divorce is the right to a jury trial in such cases as it existed at the time of the adoption of the Constitution of 1846.
The power to grant divorces was transferred from the Legislature to the Court of Chancery by chapter 69 of the Laws of 1787, the preamble of which recited that it was thought--
‘more advisable for the Legislature to make some general provision in such cases than to afford relief to individuals, upon their partial representations, without a just and constitutional trial of the facts.’
The act provided that if the party complained of should deny the fact of adultery stated in the bill or petition--
‘the Chancellor shall and may thereupon direct such proper issue or issues as to him shall seem expedient for trial of the fact or facts of adultery stated in said bill or petition, which issue or issues shall be tried either by a special or common jury before the Judges of the Supreme Court, or some one of them, at the bar of the said court or at any circuit court within this state, as the Chancellor for the time being shall direct.’
Substantially the same provisions in regard to the mode of trial were re-enacted in the Revised Laws of 1813 (2 R. L. 198). Upon a denial of the alleged adultery--
‘the Court of Chancery shall thereupon direct a feigned issue or issues to be made up for trial by jury of the fact or facts of adultery charged by the complaint and denied by the defendant,’ and ‘ may direct the same to be tried by a special or foreign jury if deemed necessary.’
Finally by the Revised Statutes, which were in force in 1846, it was provided as follows:
‘If the offense charged be denied, the court shall direct a feigned issue to be made up, for the trial of the facts contested by the pleadings, by a jury of the country, at some circuit court; and it may direct a special jury to be struck for such trial, and may make the necessary orders for procuring a list of jurors, and for striking the same; and may award a new or further trial of such issue, as often as justice shall seem to require.’ 2 R. S. 145, § 40.
To ascertain what was the practice of the Court of Chancery under this provision of the Revised Statutes reference must be had to the chancery rules as they existed in 1846. Rule 167 provided:
‘On a bill for divorce, or to avoid or annul a marriage contract for any other cause than physical incapacity, if the material allegations in the bill are denied in the answer and the complainant does not file a replication within the time allowed by the rules of this court, the defendant on due notice may apply to have the bill dismissed; but if a replication is filed either party, without entering an order to produce witnesses, may, on the usual notice to the adverse party, apply for a feigned issue.’
The ‘usual notice’ was prescribed by rule 89 and varied from four to eight days, depending upon the residence of the solicitor for the adverse party. There were other rules relative to jury trials in chancery cases, adopted pursuant to chapter 317 of the Laws of 1839, but these do not appear ever to have been regarded as applicable to matrimonial actions.
From what has been stated it is clear, I think, that when the Constitution of 1846 was adopted a...
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