Opinion
01-10-1890
HARRISON v. HARRISON.
J. G. Shipman, for plaintiff. George H. Large, for defendant.
(Syllabus by the Court.)
On motion to strike out answer by way of cross-bill.
J. G. Shipman, for plaintiff. George H. Large, for defendant.
MCGILL, Ch. By her bill, the complainant seeks relief under the twentieth section of the divorce act, (Revision, 318,) which provides that in case a husband, without justifiable cause, shall abandon his wife, or separate himself from her, and refuse or neglect to maintain and provide for her, this court, by its order or decree, may require him to make suitable provision for her support and maintenance. In answer to this bill, the defendant first denies the abandonment, separation, neglect, and refusal charged, and then, by way of cross-bill, alleges that the complainant deserted him, and that her desertion has been willful, continued, and obstinate for three years, and prays that because of it he and the complainant may be divorced from the bond of matrimony. The complainant, in pursuance of the practice permitted by the 224th rule, now moves to strike out that part of the answer which is by way of cross-bill because it introduces new matter, and seeks relief not necessary to the defense in the suit.
The complainant actually left the defendant; but the theory of the bill is that she was compelled to leave him, not only because of his continued ill treatment of her, but also because of his express command to her to go. Upon final hearing in the case, the court will be called upon to determine whether the complainant's departure was so induced by the defendant as to constitute it a constructive abandonment on the defendant's part, or whether it was the voluntary and unjustifiable act of the complainant. Under the answer alone, the defendant can adequately meet this issue; but he is not content to simply repel the complainant's attack. It is his purpose to show, not only that her departure was unjustifiable, but it was desertion of him, willful, continued, and obstinate, for three years, of such character as to entitle him, under the statute, (Revision, p. 315, § 3,) to a divorce from the bond of matrimony, and to have such divorce decreed in his favor, so that the complainant may be precluded from again attacking him. His cross-bill does not introduce a new and distinct cause of action. It merely seeks a consideration of the separation drawn in question by the bill to its full extent, and in all its aspects, and the relief that upon such consideration he may appear to be entitled to.
The office of a cross-bill is to enable a defendant to obtain discovery from, or relief against, a defendant or co-defendant in the original bill, so that he may make a more complete and effectual defense than he could make by answer alone, or so that the court may do complete justice to all parties in respect to the matter put in litigation by the original bill. If new facts are introduced by it, they must be so closely connected with the cause of action set up in the original bill as to render the cross-suit a mere auxiliary of the original suit. It must not be the means of instituting a distinct suit in relation to other matters. Kirkpatrick v. Corning, 39 N. J. Eq. 136, (affirmed on appeal, 40 N. J. Eq. 243;) Krueger v. Ferry, 41 N. J. Eq. 432, 5 Atl. Rep. 452, (affirmed on appeal, 43 N. J. Eq. 295, 14 Atl. Rep. 811.) It would seem that within this definition the cross-bill in this case is proper; for, while it is true that the defendant can make a sufficient defense under his answer, his cross-bill puts it within the power of the court, through the same proofs, to do complete justice between the parties in the single suit, and thus preclude future litigation between them. The English ecclesiastical courts exhibited a greater liberality in the allowance of cross-actions in matrimonial causes than is necessary to sustain this cross-bill; and when it is remembered that chancery borrowed its practice respecting cross-bills from those courts, and that in this state it has succeeded to jurisdiction over matrimonial causes, which was so long the concern of those courts, it would seem that a practice sanctioned by the ecclesiastical courts with reference to cross-actions in matrimonial causes cannot be without weight in this consideration. In the case of Best v. Best, 1 Addams Ecc. 411, a wife sued for divorce on the ground of cruelty; and the husband was allowed, in addition to a responsive answer denying the cruelty, to set up in the same suit the wife's adultery, and ask for a divorce because of it. So, in a suit brought against a woman for jactitation of marriage, she was allowed to set up as a defense that she was lawfully married to the plaintiff, and also to ask for restitution of conjugal rights; and where the wife sued fora restitution of conjugal rights the husband was permitted to set up her adultery as a defense, and to ask for a divorce. 3 Burn, Ecc. Law, (Phillim. Ed.) 183. I am unable to find a precedent in this court which goes to the length of the practice in the ecclesiastical courts. But in the court of errors and appeals, in the case of Osborn v. Osborn, 44 N. J. Eq. 257, 9 Atl. Rep. 698, 10 Atl. Rep. 107, 14 Atl. Rep. 217, where a husband sued for divorce on the ground of his wife's adultery, and she denied the adultery, and by way of cross-bill alleged the husband's desertion of her, and asked for a divorce because of it, it was determined that the relief prayed by the husband should be denied, and that the divorce asked by the wife should be granted. It will be observed that in Osborn v. Osborn the causes of action were entirely distinct, and presented issues which could not be determined by the same proofs. I am satisfied that I should sustain the cross-bill in the case before me. The motion will be denied, with costs.