Opinion
12-28-1885
PULLEN v. PULLEN.
W. Y. Johnson, and Atty. Gen. Stockton, for petitioner. G. O. Vanderbilt and W. D. Holt, for defendant. W. D. Holt, for the motion.
On petition for divorce.
W. Y. Johnson, and Atty. Gen. Stockton, for petitioner. G. O. Vanderbilt and W. D. Holt, for defendant.
W. D. Holt, for the motion.
This motion to strike out comes before the court under chancery rule No. 215, which gives the practice of having objectionable matter in the pleadings adjudicated upon on motion without filing demurrer or exceptions. The motion in this case is to strike out of the petition certain parts thereof which allege cruelty, and cite instances thereof, because such allegations and citations are impertinent. This subject may be intelligibly discussed under the following heads: First. What constitutes impertinence in a bill in equity? Second. What parts or part (if any) of this petition are impertinent? Third. How shall the court under the rule dispose of the motion in justice and equity to both parties?
(1) What constitutes impertinence? STORY defines it to be "the introduction of any matter into the pleadings or proceedings in a suit which are not properly before the court for decision at any stage of the suit." Story, Eq. PL § 266. "Pacts not material to the decision are impertinent, and if reproachful they are scandalous." Chancellor KENT, in Woods v. Morrell, 1 Johns. Ch. 103 et seq. Chancellor KENT, in the case just quoted, laid down the following rule: "Try whether the subject of the allegations could be put in issue, and would be matter proper to be given in evidence between the parties. Also, see case of Camden & A. R. Co. v. Stewart, 19 N. J. Eq. 343 et seq.; Daniell, Ch. Pr. 349.
(2) The impertinent parts. The allegations of cruelty are impertinent, because (1) they are set out with unnecessary prolixity; (2) they are not material to the suit; (3) the allegation of cruelty, if put in issue, would not be matter proper to be given in evidence between the parties.
(3) We submit there is but one disposition to be made of the motion, —the impertinence must be stricken out. The case of Mclntyre v. Trustees of Union College, 6 Paige, 239, says: An exception for impertinence will be overruled if the expunging the matter excepted to will leave the residueof the clause which is not covered by the exception either false or wholly unintelligible.
BIRD, V. C. This petition is for divorce upon the ground of adultery. It, in the first place, sets forth various acts of cruelty, followed by the specific charge of adultery on the part of the husband. It charges that his conduct towards the petitioner was coarse, brutal, and inhuman; that he struck her with his fists; that he called her vile names; that he kicked her, and caused her to be delivered of a still-born child;, that, upon another occasion, he struck her, and knocked her down, and caught her by the throat, and said "he would shut down on her wind," and very many other similar charges of cruelty, covering several pages. The charge of adultery, upon which the petition rests, covers but a little more than one page of the petition. The defendant has given notice of a motion, and asks leave to strike out all that portion of the petition alleging and charging cruelty, because impertinent. The question, therefore, is whether the course adopted by the petitioner in setting forth numerous acts of cruelty prior to the acts complained of is good pleading or not. The learned counsel for the petitioner insists that these allegations of cruelty are not in conflict with any rule of the court or decisions recognized as binding. He thinks it eminently proper to set forth such conduct upon the part of the husband by way of inducement, preliminary to the main charge, as showing his state of mind and the alienation of his affections. They say it is true that no relief is sought for upon the ground of cruelty, but that the proof of the facts alleged may become necessary to satisfactorily establish the charge of adultery.
The case cannot be presented in any stronger light than it was by the counsel. In Decamp v. Decamp, 1 Green. Ch. 296, the court said: "A charge of adultery and a charge of extreme cruelty cannot be united in the same bill." The two charges in that case were regarded as multifarious. I do not fail to observe, however, that in that case there was a prayer— First, for divorce a mensa et thora, for extreme cruelty; and, second, a divorce a vinculo matrimonii, for the cause of adultery only. In Snover v. Snover, 10 N. J. Eq. 261, it was decided that charges of adultery are improper in a bill which prays for a divorce of mensa et thora only. It is important to observe that in this case the evidence which related to acts of adultery were suppressed. If the case in hand come within these, it is my duty to be governed by them. Clearly, the last case cited, is very similar to this, the only difference between them being a change in the order of the allegations made and the relief prayed for. In Snover v. Snover, the allegations of adultery were followed by allegations of cruelty with a prayer for divorce a mensa et thora, while in this come first the charges of cruelty, followed by the charges of adultery, upon which the prayer for divorce alone rests. If the testimony in Snover v. Snover was suppressed because it related to matters which had no proper influence or bearing upon the case, it would seem as though the same result would inevitably follow in this case were all the allegations in this petition respecting cruelty to stand, and proof be offered to sustain them.
Certainly, if it comes to this, that the testimony would be stricken outon motion, it ought not to be produced; which makes it very clear that the allegations in the petition ought not to remain, because, if they do, it will be necessary for the defendant to answer them, and to make such preparation to meet them as he can. The question being raised, and seeing the tedious and expensive way to the end, and the consequences which must then follow under the case last cited, I cannot hesitate to conclude that the motion to strike out ought to prevail. My attention has been called to the case of Mulock v. Mulock, 1 Edw. Ch. 14. The petitioner's counsel believed that this case is broad enough to sustain the allegations of his petition. The court, however, distinctly said that cruelty and adultery are entirely distinct causes of divorce, and cannot be combined in the same bill as substantive causes of complaint. In that case the court only went so far as to say that, when a charge of adultery is in issue, evidence of acts of cruelty, and in corroboration of other circumstances which lead strongly to the conclusion that the adultery was in contemplation and was actually committed, may be received in evidence. This case would seem to sustain the decisions in our own courts. To the extent, therefore, that acts of cruelty can be shown to be connected with and to form part of the main charge of adultery, it may be proper, as was conceded in Mulock v. Mulock, to offer evidence respecting them; but it by no means follows that they must be set forth in the petition. Their absence is no ground of surprise to the defendant, because he is presumed to know all about the main charge, and prepared to meet every circumstance when that charge is made. I will advise an order in ac cordance with these views.