Potts v. Potts

• Decision Date: 01 April 1899
• Citation: 42 A. 1055
• Parties: POTTS v. POTTS.
• Court: New Jersey Court of Chancery

42 A. 1055

POTTS

v. POTTS.

Court of Chancery of New Jersey.

April 1, 1899.

(Syllabus by the Court.)

Bill by Earl Clinton Potts against Annetta S. Potts for a divorce. Complainant allowed to amend bill, and defendant allowed to add demurrer to plea.

The bill sets out the following facts: The parties were married on April 6, 1888, and lived together at Orange, in this state, until July 13, 1896, when the defendant left complainant's residence without his consent, and went to an apartment house in New York City, accompanied by a man named Gill, whose visits she received while living in said house. A deed of separation between the husband and wife was executed on October 19, 1896, by the terms of which he was to pay her $83 a month. As late as December 25, 1896, she was living In Brooklyn. On or about August 2, 1897, she caused to be instituted in the circuit court of the Third judicial district of the state of South Dakota a suit against the complainant for divorce; falsely alleging in her complaint filed in that case that she was then, and had been for upwards of six months next preceding, a resident of the state of South Dakota, in good faith, and setting up as one cause for a divorce that her husband had deserted her on July 30, 1896, notwithstanding the fact that the parties were living apart by virtue of the articles of separation, and that the husband was at that time paying to the wife's trustee the monthly sum of $83. That her bill for divorce set up as a further cause for divorce certain false charges of cruelty, not in themselves a ground for divorce either in the state of New Jersey, or of the domicile of the complainant or defendant, or in the state of New York, if she had a domicile other than that of the complainant; such alleged acts of cruelty having been committed prior to the departure of the wife from the home of the husband. That at the time when the suit was instituted the husband was a resident of New Jersey. That no personal service was made on him of process in said suit, nor did he enter an appearance thereto. That the only notice the husband has ever had of said suit was the service upon him, at his place of business in the city of New York, of what purported to be a copy of the summons and complaint in the divorce suit, and of an order of publication made therein, providing in the alternative for service of said summons by publication, and the mailing of a copy of the summons and complaint to the husband, at No. 109 Cleveland street, Orange, N. J., or, in lieu of such publication and mailing, for the personal service of a copy of said summons and complaint, together with a copy of said order, upon the husband outside of the state of South Dakota. That on September 28, 1897, it was finally adjudged in said cause that the bonds of matrimony between the said parties were dissolved. The bill further charges that the wife did not take up a residence in good faith in the state of South Dakota, and that the South Dakota court had no jurisdiction over the subject-matter of the suit, or, if it had, it had no jurisdiction over the husband, he having entered no appearance to the suit, and the decree had no force beyond the limits of the state of South Dakota. The bill then states that even if the wife did take up such residence in good faith, and the court of that state did acquire jurisdiction by the service upon the husband of the summons and complaint, nevertheless the decree is fraudulent and void; said wife having unlawfully concealed from the said court the existence of the said deed of separation between her and her husband, which deed of separation rendered groundless, as causes for divorce, the charges of desertion and cruelty. The bill then charges that the wife, after the entry of such decree, married Gill, within the state of South Dakota, and returned with him to New York City, where they lived together as man and wife. The prayer is for a divorce because of the adultery of the wife with Gill, for so living together. To this bill the defendant has filed a plea setting up in full the decree of the South Dakota court. The decree finds that the wife was, in good faith, for upwards of six months preceding the commencement of the suit, a resident of South Dakota. It divorces the parties on the sole ground of the extreme cruelty of the husband.

John R. Hardin, for complainant.

Charles B. Storrs, for defendant.

REED, V. C. (after stating the facts). As already appears, the bill is filed to annul a decree of divorce obtained by. the wife, and to get a new decree of divorce upon this bill filed by the husband, on the ground of the wife's adultery. The bill, as also appears, sets out the South Dakota decree, which it prays to have annulled, and then sets up facts about this decree, for the purpose of showing that it should, in this court, be declared a nullity. The defendant simply sets up the South Dakota decree by way of a plea in bar. The question is whether the plea is good. Pleas are of three kinds. The usual kind is known as an "affirmative plea." It sets up a single fact not appearing in the bill, or sets up a number of circumstances all tending to establish a single fact, which fact, if existing, destroys the complainant's case. Then there are negative pleas. The defendant, instead of filing an answer to everything in the bill, is permitted to deny by a plea some particular fact set up in the bill, the nonexistence of which fact strips the complainant of any relief whatever under his bill, notwithstanding the other facts stated therein. Then there is a class of pleas which are neither strictly affirmative nor negative, and so are styled "anomalous." Such a plea can be filed where a complainant, after stating his case, proceeds to set out some fact which exists, or which the defendant pretends exists, which fact, if standing alone, would defeat his suit, and then goes on to state circumstances to show that the existence of such fact cannot be used against him. Thus, where the bill states that there has been an account stated between the parties, or an award of arbitrators, or a former judgment or decree, either of which would bar the suit, and then proceeds to attack the account stated, or award or judgment or decree, by setting up circumstances to invalidate them, such a plea is permissible. The defendant can restate the existence of the account stated, or of the award or judgment or decree, and then deny the impeaching circumstances stated in the bill. The rule applies whenever the object of a suit is to impeach a judgment or decree set up in the bill. Says Mr. Daniell, "Where a bill is brought to impeach a decree on the ground of fraud used in obtaining it, the decree may be pleaded in bar of the suit, with averments negativing the charges of frauds." 1 Daniell, Ch. Pl. & Prac. 605. Where the bill seeks a discovery from the defendant in respect of facts relied on to impeach the decree, the defendant must accompany his plea with an answer covering those facts. The plea in the present case, as already remarked, sets up a previous decree of absolute divorce made in a suit between the same parties. If it merely restated the record of such decree as already stated in the bill, the plea would be clearly bad, for it contains no averments negativing the impeaching circumstances charged in the bill. Story, Pl. § 680. If it be said that the circumstances stated in the bill are insufficient to impeach the decree therein stated, the answer is that in such case the appropriate course of the defendant was to demur to the bill. Id. § 639. The novelty presented by the conditions of the present pleadings is that, while the plea sets up the record of a suit in which a decree was granted which is obviously the same decree which the bill purports to set out, yet the record pleaded differs from that contained in the bill in two important particulars. The plea states two facts not to be found in the bill, namely: First, that the South Dakota court found that the wife had, in good faith, resided in the state of South Dakota for six months preceding the bringing of her suit; and, second, that the decree was granted, not for the desertion, but for the cruel treatment, of the husband. As these facts were material to the bar which the defendant claims, in view of the impeaching circumstances set up in the bill, he was compelled to plead the record in which they ...