Olson v. Piazza

• Decision Date: 20 May 1921
• Docket Number: No. 48/546.,48/546.
• Citation: 114 A. 330
• Parties: OLSON v. PIAZZA.
• Court: New Jersey Court of Chancery

114 A. 330

OLSON

v. PIAZZA.

No. 48/546.

Court of Chancery of New Jersey.

May 20, 1921.

(Syllabus by the Court.)

Petition by Lillian Olson against Angelo Piazza for annulment of marriage. Cause stayed.

Pomerehne & Laible, of Newark, for petitioner.

WALKER, Ch. The petition in this case alleges that on August 5, 1920, a form of ceremony of marriage took place between the petitioner and defendant in the city of New York; that at that time the petitioner was incapable of consenting thereto, being a person of feeble and unsound mind, bereft of reason to truly comprehend the nature of the marriage contract and deprived of will to give intelligent consent thereto. Further on in her petition she alleges that her mind "is as immature as that of a young child, susceptible to any influence or persuasion on the part of another, depriving her of the power of deliberation and choice," and that she has been since childhood, and still is, under the care and treatment of physicians. The proofs which have been taken before a special master sustain these allegations. She has not been found to be a lunatic on inquisition.

The master's report being presented to me for review and determination as to whether or not a decree nisi should be granted, the question at once presented itself as to whether or not this suit was providently brought, and, upon careful consideration, I am obliged to say that it was not.

A solicitor can no more obtain authority from a person non compos mentis to commence a suit than he could obtain authority from an infant to acknowledge service of a subpoena and defendant a suit. Bunting v. Bunting, 87 N. J. Eq. 20, 90 Atl. 840.

In Norcom v. Rogers, 16 N. J. Eq. 484, Chancellor Green held that a lunatic sues only by his committee or guardian, or in certain cases by the Attorney General or next friend; that the right of appearing and prosecuting or defending any action in any of the courts of this state, in person or by solicitor or attorney, is expressly limited by statute to persons of full age and sound memory; that a bill exhibited by a person of unsound mind must have been filed without authority of law, and should, therefore, be taken from the files. See, also, Collins v. Toppin, 63 N. J. Eq. 381, 51 Atl. 933; Kroehl v. Taylor, 69 N. J. Eq. 525, 61 Atl. 257.

In Collins v. Toppin, supra, 63 N. J. Eq. at page 383, 51 Atl. 933, Vice Chancellor Pitney held that in the case of an infant or lunatic suing by a next friend, no authority, for obvious reasons, can be presumed, and the next...