Schaab v. Schaab

• Citation: 57 A. 1090,66 N.J.Eq. 334
• Decision Date: 01 November 1903
• Court: New Jersey Supreme Court
• Parties: LEONHARD SCHAAB, petitioner, v. EMMA SCHAAB, respondent

57 A. 1090

66 N.J.E. 334

SCHAAB

v. SCHAAB.

Court of Errors and Appeals of New Jersey.

May 13, 1904.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Suit by Leonhard Schaab against Emma Schaab. Prom a decree dismissing the petition, plaintiff appeals. Reversed.

Weller & Lichenstein, for appellant.

FORT, J. The petition in this case was filed for a divorce for the cause of adultery. The petitioner alleges that the defendant was guilty of adultery in 1900 and 1901 with one J. L., and at a later period in 1901 with a person unknown. The proof of the first charge of adultery was conclusive, but there was clear evidence of the condonation of the first offense by the petitioner. The fact of the adultery on the second occasion, viz., December, 1901, we think, is also established by the evidence.

Two classes of proof were offered as to the second offense: First, evidence of the defendant herself, she being called by the petitioner to testify for him; second, evidence given by detectives employed by the petitioner as to compromising circumstances from which guilt would necessarily be inferred, where no explanation was made or attempted. The testimony of the detectives was that they followed the defendant and a man unknown at the time, but shown by the evidence to have been one H., to the Grandview Hotel, in Bergen county, and there saw the defendant and H. upstairs in a bedroom in the hotel, partly disrobed, in which room they remained together, drinking, for upwards of two hours. Tbe defendant, when called as a witness, was Informed by the master that she was not compelled to testify. She declined to answer certain questions which went to directly establish her guilt, but answered others. She neither denied her guilt, nor asked leave to do so, when under examination.

It is contended that the defendant was not only not compelled to testify, but that she was not a competent witness. This necessitates the consideration of sections 2 and 5 of the act concerning evidence (Revision of 1900; P. L. 1900, pp. 302, 363). Said sections read as follows:

"Sec. 2. In all civil actions in any court of record, the parties thereto shall be admitted to be sworn and give evidence therein, when called as witnesses by the adverse party in such action; and when any party is called as a witness by the opposite party, he shall be subject to the same rules as to examination and cross-examination as other witnesses: provided, no party to a suit shall be compelled to be sworn or give evidence in any action brought to recover a penalty or to enforce a forfeiture: and provided also, this section shall not apply to suits for divorce."

"Sec. 5. In any trial or inquiry in any suit, action or proceeding in any court, or before any person or committee having by law or consent of parties authority to swear witnesses or hear evidence, the husband or wife of any person interested therein as a party or otherwise, shall be competent and compellable to give evidence the same as other witnesses, on behalf of any party to such suit, action or proceeding: provided, that nothing herein shall render any husband or wife compellable or competent to give evidence for or against the other in any action for criminal conversation, except to prove the fact of marriage, or to render any husband or wife competent or compellable to give evidence against the other in any criminal action or proceeding except to prove the fact of marriage, and except as now otherwise provided by statute, or compellable, in any action or proceeding for divorce on account of adultery to give evidence for the other, except to prove the fact of marriage, nor shall any husband or wife be compellable to disclose any confidential communication made by one to the other during the marriage."

It will be noticed that section 2 only applies to a party to an action when such party is called as a witness "by the adverse party." This section, however, does not apply to a proceeding for divorce, for, by the express terms of the proviso at the end of it, it is enacted, "and provided also, this section shall not apply to suits for divorce." This language is too plain for construction, and hence, if there were no other statute authorizing the calling of a wife as a witness for her husband, or vice versa, in a divorce suit for the cause of adultery, the common-law rule would apply, and she would be neither competent nor compellable to testify therein....