von Bernuth v. von Bernuth

• Decision Date: 19 June 1909
• Citation: 73 A. 1049,76 N.J.E. 177
• Parties: VON BERNUTH v. VON BERNUTH.
• Court: New Jersey Court of Chancery

73 A. 1049

76 N.J.E. 177

VON BERNUTH

v. VON BERNUTH.

Court of Chancery of New Jersey.

June 19, 1909.

Petition for divorce by Pauline S. Von Bernuth against Frederick A. Von Bernuth, Jr. Complainant moves for an injunction to restrain defendant from prosecuting an action for separation in New York. Granted.

Thomas L. Raymond, for the motion.

Clinton H. Blake, Jr., and Somer, Colby & Whiting, opposed.

HOWELL, V. C. This is a motion for an injunction to restrain the defendant from further prosecuting an action in the Supreme Court of New York. On October 5, 1908, the petitioner filed her petition in this court praying for a divorce against the defendant upon the ground of desertion. This petition was subsequently amended, and citation thereon was issued and returned by the sheriff not served. An attempt was then made to secure the appearance of the defendant, who was then residing in the city of New York, by substituted service. The order for publication of the substituted notice was made on November 25, 1908, and the time for answer appointed thereby expired on January 26, 1909. On January 20, 1909, counsel for the defendant took an order that he have 20 days' additional time in which to file an answer or demurrer to the amended petition. On February 13, 1909, another order was made on motion of defendant's counsel extending the time to answer or demur 20 days further. On February 24th a general appearance was entered for the defendant by one of the solicitors of this court, and on the same day he filed an answer denying the allegations of the amended petition. On March 1, 1909, he again appeared by counsel to oppose a motion for alimony, and on May 5, 1909, he filed an amended answer and a cross-petition for an absolute divorce against the petitioner, alleging as the ground thereof her desertion of him. These are all the proceedings in the New Jersey suit which it is of importance to set out. On March 17, 1909, the defendant brought an action in the Supreme Court of New York against the petitioner by the issue of a summons out of that court directed to the petitioner herein and entitled "action for a separation." On March 23, 1909, that court made an order for substituted service on the petitioner. The summons with notice of the order was served upon her on March 24, 1909. This required her to file her answer in the New York suit on or before April 23, 1909. The petitioner moves upon petition and affidavits showing those facts to restrain the defendant in the New Jersey action from further prosecuting his action in New York upon the grounds (1) that this court having obtained jurisdiction of the matrimonial status of these parties, and of the causes of action between them, was entitled to proceed to a determination of the issue; and (2) that the action of the defendant in New York is vexatious and is designed only to hinder and harass the petitioner in her prior action in New Jersey, and to cause her the expense and labor incident to the trial of one issue in two separate actions.

The suit in this court in favor of the wife and the defendant's appearance and answer thereto were prior in date to the beginning of the New York action. The New Jersey suit relates to the situation as it was at the date of its beginning. The amendment to the petition relates back to that date, and the defense by way of answer speaks as of the same date. At the time of the filing of the petition herein the wife claimed that she had a cause of action against her husband for a desertion which began more than two years before. The husband by his cross-petition claims to have cause of action against the wife for a desertion which began more than two years before the filing of the cross-petition. The evidence in each case must include all the acts and doings of both parties during the period of desertion alleged. To illustrate, on the issue made on the original petition and answer, it will be competent for the defendant to bring out matrimonial misconduct on the part of the petitioner as a bar to her action, and, if the New York suit were to be tried, the petitioner by way of defense would be permitted to set up a matrimonial offense committed by the defendant in bar of his New York suit. The fact that the original petition and the cross-petition in this court with their respective answers are heard together makes no difference as to the evidence. The adjudication in the New Jersey suit must be made on these pleadings, and, while the decree will settle the rights of the parties as of its date (Peck v. Goodberlett, 109 N. Y. 180, 16 N. E. 350; Randel v. Brown, 2 How. 406, 11 L. Ed. 318), no decree at all could be made unless the parties, respectively, had causes of action which related back to the earlier dates mentioned. Events happening after the bringing of the original suit are interjected into it by the leave of the court by supplemental bill or by supplemental answer, and, when these go in the adjudication as to the facts set up therein, will relate to the dates of the happening thereof.

The defendant in his cross-petition in this suit alleges that the petitioner without any cause or justification whatever, and without any fault on his part, wrongfully, willfully, and obstinately abandoned and deserted him, and that for more than two years then last past she had willfully, obstinately, and continuously deserted him, and he prays that he may be divorced from his wife and be awarded the custody of his children. In the complaint filed in New York the defendant alleges that the petitioner deserted him without any justification whatever and with intent not to return to him, and abandoned him, and that she had been willfully and continuously absent from him for a period of more than one year last past; and he prays for a judgment of separation from the bed and board of the petitioner, and that the court may award to him the custody of his children. The basis of the action in each case is the desertion. The relief prayed for in each case is founded on the allegation of the fact of desertion. This court obtained possession of that cause of action on the day of the filing of the original petition, and the petitioner insists that, for this reason, this court should continue to hold the cause, and should adjudicate every matter which might by the course and practice of this court be adjudicated between these parties. She likewise claims that the New York action is vexatious and is intended to hinder and harass her in the prosecution of her suit in this court. The defendant maintains that the cause is one governed by the ordinary rules, and that it is entirely proper for him to have two suits pending for the same cause of action in two different states at the same time, and that the pendency of one cannot be pleaded in bar to the other. While there is nothing in the case to show that the defendant had in his mind any intent to embarrass the petitioner, his New York action has that effect. She is called upon in this court to defend a suit for an absolute divorce on the ground of desertion. She is called upon in New York to defend against a prayer for a limited divorce founded upon the same general cause of action. She is notified in the New Jersey case to defend against a desertion which is alleged to have taken place on March 19, 1907, and in the New York case to defend against a desertion which is alleged to have taken place on July 3, 1906. She is put to the expense and trouble of defending two actions, when the defendant might have all the relief to which he is entitled, and more than he asks for in New York, by litigating the cause pending in this court. This is undoubtedly vexatious and harassing to the petitioner, and, if the two causes are allowed to proceed, will undoubtedly be embarrassing to the courts of both states. If, therefore, there exists in the law any proceeding by which this vexatious action of the defendant may be prevented, such proceeding should be applied to this case.

This raises the question of the power of this court to enjoin persons who are under its jurisdiction from prosecuting actions in the courts of foreign states. Almost the final word was said upon the subject by Lord Brougham in Portarlington v. Soulby (1834) 3 M. & K. 104, but the point has also received much attention in the courts of this state. In Home Insurance Company v. Howell (...