Opinion
Submitted October 15th, 1940.
Decided February 3d 1941.
In its earlier consideration of the case sub judice, the court, in affirming the decree entered below granting a limited divorce to the wife on the charge of adultery, was necessarily obliged to review the testimony and to consider the charge of desertion made by the husband against the wife, since this charge had been urged as a recriminatory defense. The judgment of the court sustaining the decree appealed from of necessity involved the finding that the desertion charged against the wife had not been proved.
On appeal from the Court of Chancery.
Messrs. McCarter, English Egner ( Mr. Conover English, of counsel), for the appellant.
Mr. Nicholas Brescia ( Mr. Bernard W. Schnur, of counsel), for the respondent.
Mr. Fred Scherer, for the intervening defendant.
This cause has heretofore been considered in this court. Christensen v. Christensen, 127 N.J. Eq. 13.
As the matter went to trial, for purposes of present consideration, the trial court had before it the charge of adultery made in the wife's petition for limited divorce and the denial of this charge by the husband. The husband also set up as a recriminatory defense the alleged prior desertion of the petitioner. He also counter-claimed for absolute divorce from the wife on the ground of this alleged desertion. Decree was entered granting the limited divorce to the wife on the charge of adultery. Appeal from that decree being made to this court, the same was affirmed. Christensen v. Christensen, supra.
Following the affirmance of the decree in this court, counsel for the husband, conceiving that the issue of desertion alleged in his counter-claim had not been disposed of because not mentioned in the decree, moved in Chancery to enter a decree in favor of the husband on the counter-claim for desertion. The learned advisory master thereupon advised an order and decree supplementing final decree, dismissing defendant's counter-claim nunc pro tunc. The present appeal brings this last mentioned order and decree before us.
We have carefully considered the argument made by appellant in this appeal but find the same to be wholly without merit. In our earlier consideration of the matter, of necessity, we were obliged to review the testimony and to consider the charge of desertion made against the wife as this charge had been urged as a recriminatory defense, and the judgment of the court sustaining the decree there appealed from necessarily involved the finding, as it did in the court below, that the desertion charged against the wife had not been proved.
This is dispositive of the present appeal.
The decree appealed from is affirmed.
For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, JJ. 13.
For reversal — None.