Reibeseh v. Reibesehl

• Decision Date: 11 April 1930
• Citation: 149 A. 823
• Parties: REIBESEH v. REIBESEHL.
• Court: New Jersey Court of Chancery

149 A. 823

REIBESEH

v. REIBESEHL.

Court of Chancery of New Jersey.

April 11, 1930.

Syllabus by the Court.

The parties to this suit were parties to a former suit in the Supreme Court of New York for a judicial separation from bed and board for abandonment, which was granted with alimony for the wife and support, maintenance and education for the child (which judgment still continues in full force and effect, unreversed), but may be vacated upon proper application; and the suit here is one for divorce from the bond of matrimony forever upon the ground of desertion, which is the same as, and involves, abandonment.

Syllabus by the Court.

The decree of the New York court, while not res judicata of the issue in the pending suit, which differs from that in the former suit (here divorce from the bond of matrimony forever, there a judicial separation, liable to be vacated), is, nevertheless, stare decisis or the law of the case, and binds the parties here and controls the judgment of this court, so long as it lasts.

Petition for divorce by Henry M. Reibesehl against Anna M. Reibesehl. On exceptions to master's report.

Exceptions overruled, and petition for divorce dismissed.

Butler & Butler, of Jersey City, for petitioner.

WALKER, Chancellor.

This case arose upon a petition filed November 21, 1926, for divorce. The defendant did not answer and the cause was referred to a special master, to report upon the propriety of granting the relief prayed for. The report was filed July 9, 1927, and recommended a divorce.

The master examined the petitioner as follows:

"Q. Did you or your wife ever have any other proceeding in any court relating to your marriage or any separation between you?

"A. No sir.

"Q. Has there ever been any suit by you or her regarding your marriage or separation?

"A. No," sir."

The master filed a supplemental report, November 22, 1927, without any authority therefor, and in it he says:

"There has been no further order of reference to me, but one of the Advisory Masters required that the subject matter of rule 263 of this court should be propounded to the petitioner in the very language of the rule. * * *

"There was produced before me, a copy of the judgment of separation entered in the New York proceedings on the 26th day of December, 1924, signed by the Honorable Isador Wasservogel, a Justice of the Supreme Court of the State of New York. By the judgment, it was ordered, adjudged and decreed that the plaintiff was entitled to a judgment separating her and the defendant (the petitioner herein) from bed and board. The custody of the issue of their marriage, an infant child, was awarded to the wife, and the defendant therein was directed to pay the plaintiff $15.00 weekly for her maintenance and support, and the support, maintenance and education of the child. * * *

"In my opinion, a court of competent jurisdiction in a sister State, having before the same parties as are before this court, has by its solemn judgment decreed that the petitioner herein abandoned the defendant. I think that was res judicata, and I therefore have now to recommend that the petitioner's petition be dismissed."

To this report the petitioner has excepted.

A transcript of the testimony and certified copy of the judgment in the case of Anna Reibesehl v. Henry Reibesehl in the Supreme Court of New York, Bronx County, is also before me.

Further testimony was taken before the special master, and he remarked:

"My attention is called to a letter addressed to Messrs. Butler and Butler, the solicitors for the petitioner herein, by Hon. C. V. D. Joline, Advisory Master, under date of July 26th, 1927. In my opinion, as I reread the evidence already taken in this cause, the questions required by the rules of the Court of Chancery were correctly asked by me, but if the Advisory Master thinks that the questions should be asked in the words of the rule, I have no objection."

After which, the master examined Mr. Reibesehl as follows:

"Q. Mr. Reibesehl, please state whether or not any previous proceedings have been had between you and the defendant respecting your marriage or its dissolution or the maintenance of your wife, and if so, what proceedings?

"A. Yes, sir, there was a proceeding taken in the Supreme Court in New York, for a separation for non-support.

"Q. By whom?

"A. By my wife.

"Q. When?

"A. January 25th, 1924.

"Q. As I now read your previous testimony, you said the last time you lived with your wife was in September, 1923?

"A. Yes, sir.

"Q. And do I now understand that about three months later, that is, in January, 1924, she commenced this suit against you?

"A. Yes, sir.

"Q. Why did you not tell me that when you were examined before me before?

"A. I understood that you meant all your questions for the State of New Jersey, and I paid no attention to this. I was willing to give her a couple of dollars as she was asking, thinking that she would come back to me.

"Q. That is not what I asked you. I asked you why you did not tell me about this previous suit when you were examined before me some time ago?

"A. I paid no attention to this suit. I thought maybe she would come back to me later on, but I don't think she ever will.

"Q. Mr. Reibesehl, the question that I am asking you is why did you not tell me some time ago, when you were examined before me, that your wife had brought suit against you in New York?

"A. I thought everything you were referring to me was in the State of New Jersey, regarding my divorce proceedings."

It is to be observed that the special master had absolutely no power to recall the case to himself and file a supplemental report. When a master parts with his report his services are at an end and he cannot afterwards make a supplemental report; that could only be done by virtue of an order of re-reference to him, and he expressly states that no such order was made. See Greenberg v. Greenberg, 99 N. J. Eq. 461, 465, 133 A. 708; Kaufman v. Jurczak (N. J. Ch.) 139 A. 716. Nor should he have stated that the questions required by the rules were properly and correctly asked by him but that if the advisory master thought that the question should be asked in the words of the rule, he had no objection.

He certainly could have had no objection. As a subordinate officer of the court it was his duty to obey the mandate given by a higher one in the course of the business in hand.

The sufficiency of all that the advisory master says, is apparent upon the special master recalling the petitioner and asking him the question in the language of the rule, when he admitted the previous proceedings; as well he might. When the petitioner was asked by the special master on the original hearing: "Did you or your wife ever have any other proceedings in any court relating to your marriage...