Opinion
Submitted February 11th, 1944.
Decided April 13th, 1944.
In a divorce suit, defendant having left the state before suit begun, held that the trial court properly decided that the procedure taken to notify defendant of the pendency of the suit did not satisfy the requirements of the Chancery rule.
On appeal from the Court of Chancery.
Mr. Stephen Mongiello, for the appellant.
This is a wife's suit for divorce on the ground of extreme cruelty. The husband seems to have left the state before suit was begun, and no notice to him as an absent defendant was served on him, though duly published. However, there was an order of reference to an advisory master, who proceeded to hear the proofs, and in connection therewith to inquire whether notice of the pendency of the suit had been given to the absent defendant in the manner provided by rule 277 of the Court of Chancery. Several affidavits were submitted to him, and in a written memorandum which is before us though not reported, he held that it had not been satisfactorily shown "that it was impracticable to give the defendant actual notice of this suit" (as required by the rule). We concur in his conclusion based on the proofs before him. In fact they show that appellant's counsel succeeded in locating the defendant as employed in a Hoboken restaurant, where he could have been served with process but decamped on being told of the suit. Unfortunately that oral information does not satisfy the rule above cited.
The dismissal of the petition, without prejudice, will be affirmed.
For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, WELLS, RAFFERTY, HAGUE, THOMPSON, DILL, JJ. 14.
For reversal — None.