Summary
In Dithmar v. Dithmar, 68 N.J. Eq. 533, which was upon a motion of the defendant to be discharged from a writ of ne exeat, and for the cancellation of a bond given by him under an order of the court, it was held (at p. 535): "Practice admits application to the court for discharge to be made upon affidavits and before answer, and the court upon such motion may make the discharge upon want of equity appearing in the bill or insufficiency of the affidavits, or any other thing which shows that the writ should not have been granted.
Summary of this case from Friedland v. IsquithOpinion
01-10-1905
DITHMAR v. DITHMAR.
H. A. Drake, for complainant. T. E. French, for defendant.
Suit by Mary A. Dithmar against Charles G. Dithmar, her husband, for support. Motion by defendant for discharge from a writ of ne exeat and for the cancellation of a bond given by him in discharge of the writ. Granted.
H. A. Drake, for complainant.
T. E. French, for defendant.
GARRISON, V. C. This case comes before the court upon a motion by the defendant to be discharged from a writ of ne exeat, and for the cancellation of a bond given by him under an order of this court made on the 19th day of December, 1904.
I am convinced from the proofs that each of the parties to this proceeding is a resident of the state of Pennsylvania.
The proceeding can only be maintained under the provisions of the twentieth section of the divorce act (P. L. 1902, p. 508).
By the sixth and seventh subdivisions of section 4 of that act (page 504) the Legislature has defined the cases over which the court shall have jurisdiction in this respect. The two sections read as follows:
"(6) In cases of alimony or maintenance only, provided (a) the defendant is a resident of this state at the time of filing the bill, or provided (b) the matrimonial domicile was in this state at the time of the neglect complained of, and the complainant resides in this state at the time of filing the bill, and the defendant is served with process in this state, or has property within this state at the time of filing the bill.
"(7) In all cases except desertion when either of the parties is a resident of this state at the time of filing the bill or petition and the defendant is served with process within this state."
In the case at bar the defendant was not a resident of this state at the time of the filing of the bill, and the matrimonial domicile was not in this state at the time of the neglect complained of, and the complainant did not reside in this state at the time of thefiling of the bill, and neither of the parties was a resident of this state at the time of the filing of the bill.
I therefore hold that the defendant should be discharged from the writ of ne exeat, and will so advise.
The Court of Errors, in the case of Hervey v. Hervey, 56 N. J. Eq. 424, 39 Atl. 762, holds that "to the effectual initiation of a suit brought in the Court of Chancery by a wife against a husband for maintenance under the twentieth section of the act concerning divorce two things are necessary: jurisdiction of the subject-matter of the controversy, and jurisdiction of the person of the defendant."
And on page 428, 56 N. J. Eq., page 763, 39 Atl., that court says: "The regulation of the institution of marriage is a matter of high public policy. The persons subject to this regulation are naturally and by general law those who are domiciled within the borders of the state. Specially they are those who have therein such a domicile as the state may positively prescribe."
Since I find as a fact that neither the wife nor the husband resided in New Jersey, I conclude that the writ should not have issued, and that the defendant should be discharged therefrom.
Practice admits application to the court for discharge to be made upon affidavits and before answer, and the court upon such motion may make the discharge upon want of equity appearing in the bill or insufficiency of the affidavits, or any other thing which shows that the writ should not have been granted. Cary v. Cary, 39 N. J. Eq. 3 (Runyon, Ch., 1884).
The writ will only issue for equitable demand. MacDonough v. Gaynor, 18 N. J. Eq. 249 (Zabriskie, Ch., 1867).
If the court has not Jurisdiction of the subject-matter, there is no equitable demand upon which the writ may rest for a basis.
I will advise an order as heretofore stated.
Application is also made by the defendant for an order that the complainant give a bond for costs in pursuance of section 21 of the divorce act (P. L. 1902, p. 509).
It is proper that this application should be granted, and I will advise an order to that effect.