Swanson v. Swanson

• Decision Date: 19 November 1951
• Docket Number: 1951,M--30,Nos. A--28,1950,A--29,s. A--28
• Parties: SWANSON v. SWANSON.
• Court: New Jersey Supreme Court

Page 169

8 N.J. 169

84 A.2d 450

SWANSON v. SWANSON.

Nos. A--28, A--29, 1951. M--30, 1950.

Supreme Court of New Jersey.

Argued Oct. 22, 1951.

Decided Nov. 19, 1951.

Henry F. Schenk, Deputy Atty. Gen., Theodore D. Parsons, Atty. Gen., argued the cause for prosecutor-petitioner.

Marvin A. Stern, Jersey City, argued the cause for appellant John DeDiminicantonio and the respondent Lillian A. Swanson; Joseph Persky, Jersey City, on the brief.

The opinion of the court was delivered by

OLIPHANT, J.

This is an appeal by the prosecuting-petitioner from a judgment of the Appellate Division setting aside the conviction of Lillian A. Swanson for criminal contempt upon the ground that the court was without jurisdiction over her person. The Appellate Division 10 N.J.Super. 513, 77 A.2d 477 (1950), did not adjudicate the guilt or innocence of Lillian A. Swanson on the merits of the case but remitted the record to the Superior Court, Chancery Division, to be proceeded with in accordance with the rules and practice relating to that court and consistent with the opinion of the Appellate Division. The Attorney-General applied for certification of this judgment which was granted.

In the same judgment the Appellate Division on appeal reviewed the conviction of John DeDiminicantonio (hereafter referred to as John De) and found from the facts proven that John De was guilty of making false, untrue and perjurious statements under oath before the Superior Court and adjudged him guilty of contempt of the court, criminal in nature, and further ordered that he be committed to the common jail of Passaic County for a period of 30 days and ordering that a warrant issue forthwith directed to the sheriff of Passaic County. The defendant John De appealed the Appellate Division judgment to this court.

In view of the technical jurisdictional questions involved it is necessary to state the chronology of this cause with some exactness, particularly with reference to the Swanson appeal.

Lillian Anna Swanson, on September 2, 1949, filed a complaint for divorce on the ground of desertion alleging that she was a resident of the Township of Haskell, Morris County, in this State and that she was a bona fide resident of the State of New Jersey at the time and ever since the cause of action arose and for more than two years next preceding the commencement of the said cause of action. Such allegations are necessary jurisdictional elements of an alleged cause of action for desertion. R.S. 2:50--10, N.J.S.A.

On November 21, 1950, an amended complaint was filed similar to the original complaint, except to add thereto that the desertion by her husband was wilful, continued and obstinate for more than two years past, R.S. 2:50--3, N.J.S.A., which allegation was not in the original complaint. Both complaints were apparently verified by the statutory affidavits of non-collusion and inquiry. R.S. 2:50--8, 12, N.J.S.A.; Rule 3:85--2. On the basis of the affidavit of inquiry an order of publication was entered and the cause approved for trial under Rule 3:85--3, 4.

No answer having been filed on behalf of the husband, the case came on for trial as an uncontested suit before Advisory Master Hegarty on December 22, 1949. At this hearing Mrs. Swanson testified that she lived at 1394 Ringwood Avenue, Haskell, New Jersey and that she had lived there with her husband from June 15, 1946, but that he had deserted her on January 30, 1947. She testified her two children lived with her and attended school in Haskell, but when the court asked her the name of the school she did not know it, and John De called across the court room that the name of the school was 'St. Francis School.' The court's suspicions were aroused and at the close of the case he took it under advisement.

An immediate investigation was made by the court which culminated on March 14, 1950, when the court on its own motion appointed Louis Santorf, Esq., to prosecute proceedings in criminal contempt against Lillian Anna Swanson and the witnesses John De and Eleanor Algozina.

On March 15, 1950, Mr. Santorf filed a sworn petition in contempt which charged in detail that testimony given at the trial by the appellant Swanson and her witnesses was false and untrue and that the appellant did not reside in New Jersey on June 15, 1946, that she and her husband never lived at the address testified to, that the affidavits of non-collusion and inquiry were untrue and the jurats attached thereto had never been sworn to as required by law.

On March 15, 1950, the court issued, on this petition, an order to show cause why the named defendants should not be adjudged in contempt and ordered that a certified copy of the petition and order to show cause be served upon them either personally or by registered mail. The return day of this order to show cause was fixed as March 28, 1950. Personal service was effected upon the appellant at her residence in the Bronx, New York, and upon John De in Haskell, New Jersey.

On the return day both appeared in court and by counsel immediately entered several objections to the jurisdiction of the court, attacking the legal sufficiency of the petition and order to show cause, the power and authority of the advisory master to advise the order and to hear the proceedings in contempt, and challenged the effectiveness of the service upon the appellant Swanson in New York outside the jurisdiction of the court. In short, these challenges were directed to the jurisdiction of the court both over the subject matter and the person.

The prosecutor then moved to vacate the order to show cause as to Swanson on the ground that it had been served out of the State and asked that a writ of attachment issue forthwith and notice be given her in open court of the charges and that she be held under bond. The court denied both appellant's motions and that of the prosecutor to vacate the service, and requested that she plead to the charges. A motion for a continuance by Swanson was denied, a severance was granted to the defendant John De, and the trial proceeded as to Swanson.

The case was not completed on March 28, 1950, and was continued over to April 25, 26, 1950 when it was completed.

During this interval the respondent Swanson was entitled to appeal from the interlocutory order denying her challenges to the jurisdiction of the subject matter and the person. Rule 4:2--2(a)(3). She had 30 days to take such appeal, Rule 4:2--5 and 1:2--5(g), which she failed to do. Instead, on April 11, 1950, she filed a complaint in lieu of a prerogative writ with the Law Division, Superior Court, praying for a writ of prohibition and an order to show cause with Ad interim restraint directed to and against 'Hon. William A. Hegarty, Advisory Master of the Chancery Division of the Superior Court of New Jersey.' (L--4188--49). In this complaint the respondent reiterated each and every ground of objection to the jurisdiction previously made to the advisory master and overruled by him in the trial of the cause.

The Law Division judge to whom the application was made signed an order to show cause including an Ad interim restraint, effective until April 20, 1950, restraining the proceedings against both the defendants which was modified on April 11, 1950, so as to apply only to the proceedings against Swanson. The prosecutor, Mr. Santorf, and counsel for the appellants both countered with motions for a summary judgment and on April 20, 1950, the Law Division judge entered a summary judgment dismissing the complaint of the appellant and dissolving the Ad interim restraint.

The respondent here immediately filed a notice of appeal to the Appellate Division from this judgment. This appeal was not perfected and was dismissed by a stipulation of dismissal dated April 27, 1950, and filed May 2, 1950 (A--454--49). Rule 1:4--5.

On April 25, and April 26, 1950, the trial of the defendants Swanson and John De for contempt was continued and concluded. Counsel for the defendants took part in the trials and cross-examined witnesses produced by the prosecutor, although neither of the defendants took the stand. The advisory master found both guilty of contempt and sentenced Swanson to jail for 60 days and John De for 30 days.

On April 26, 1950, the convictions were appealed to the Appellate Division, appeals were perfected and argued October 2, 1950, and decided on November 2, 1950, as set forth in the first paragraph of this opinion. On November 13, 1950, the defendant-appellant John De filed a notice of appeal to this court after serving it on the prosecutor, Mr. Santorf, on November 10, 1950. In his notice of appeal John De stated he was appealing from a final judgment of the Appellate Division entered against him on November 2, 1950.

On November 30, 1950, the Chief Justice, as the administrative head of all the courts, and the Superior Court specifically, article VI, section VII, paragraph 1, of the Constitution, by order appointed the Attorney-General, Honorable Theodore D. Parsons, in place and stead of Louis A. Santorf, Esquire, and designated the Attorney-General as the 'Prosecuting-petitioner in this matter, to respond to the said appeal and take such other steps in the cause as may be necessary and proper.' Rule 3:80--2(c).

The Attorney-General immediately served notice of an application for certification of the judgment entered in the Appellate Division as to the respondent Swanson, on the assumption that the Appellate Division had entered its judgment on November 2, 1950, as stated in John De's notice of appeal. Certification was granted on December 4, 1950. The Appellate Division had held the usual mandate issued in the cause 10 days after the opinion for the purpose of entering a mandate in special form which it did on December 5, 1950.

The respondent Swanson filed a motion moving to vacate the order of certification before this court, alleging among other things that the Attorney-General had no right as...