To strike out a sham or frivolous answer does not usurp the right of a jury trial. The general denial and some of the separate defenses would unquestionably have entitled the appellant to have gone to the jury on the whole case had they been supported under oath, but they were not supported, and the trial court was justified in striking them out. Cf. Eisele King v. Raphael, 90 N.J.L. 219, 101 A. 200; Wittemann v. Giele et al., 99 N.J.L. 478, 123 A. 716."
Striking out a sham or frivolous plea is not an infringement of the right of trial by jury. A plea of general issue, although it denies the entire claim of the plaintiff and apparently raises a question of fact, is not protected for that reason against a motion to strike out, if found to be false. Coykendall v. Robinson, 39 Id. 98; Eisele King v. Raphael, 90 Id. 219, 223; Wittemann v. Giele, 99 Id. 478. One other point should be mentioned.
The finding of a judge, upon a motion to strike, that defendant failed to show such facts as he deemed sufficient to entitle him to defend, must be assumed to be true until the contrary appears; and we are unable to find that it does in the present case. Wittemann v. Giele, 99 N.J.L. 478. The judgment appealed from will be affirmed.
t charges were funds of the Jones company, since the checks were those of the corporation; that there were no moneys due to Mr. Jones personally from the Jones company by way of salary, dividends or otherwise but that on the contrary, Mr. Jones was indebted to the Jones company for a large sum of money; further, that the sum borrowed by Mr. Jones personally from the Studebaker Sales Corporation of America, was not at any time applied to the benefit of the Jones company; that no action was taken by the board of directors of the Jones company authorizing the execution of the agreement, dated January 2d 1931, wherein and whereby it is argued the Jones company became answerable for the loan of $150,000 for which, according to the proof, it never received an atom of consideration. Therefore, there was no fact issue raised and the sufficiency of the pleading in answer was for the court and not for the jury to consider and it was properly stricken out. Eisele King v. Raphael, 90 N.J.L. 219; Wittemann v. Giele, 99 Id. 478; Meserole Security Co. v. Dintenfass, 108 Id. 298. The second point made by the appellant is that the stockholders of the Jones company consented to the payment; that the corporation was solvent at the time and that the rights of creditors or of the public were not involved. From the proofs before us, it cannot be said that all the stockholders of the Jones company consented to these payments.
Under this rule the finding of the judge must be taken as true until the contrary appears, and this is so when an appeal is taken from such order as permitted by section 15 of the Practice act of 1912." This was followed by this court in Wittemann v. Giele, 99 Id. 478. Section 15 of the Practice act of 1912 ( Pamph. L. 1912, p. 377; 2 Cum. Supp. Comp. Stat., p. 2816), provides:
Striking out a truly frivolous complaint or answer is not an infringement of the right of trial by jury. Eisele & King v. Raphael, 90 N.J.L. 219, 223, 101 A. 200; Wittenmann v. Giele, 99 N.J.L. 478, 123 A. 716; National Surety Co. v. Mulligan, 105 N.J.L. 336, 339, 146 A. 372. Encountering, then, the predominant question concerning the legal sufficiency of the complaint, it is stipulated that anadditional fact to which reference will he presently made, shall also be recognized as if it had been embodied in the allegations of the complaint.
The view expressed in the Mikecz Case that the two-year desertion period required to constitute ground for divorce must be the two years immediately preceding the commencement of suit was of course based upon the express statement to that effect in Myles v.Myles, 77 N. J. Eq. 265, 76 A. 1037. That this is no longer the law is of course evident from the unanimous opinion of the Court of Errors and Appeals in Remond v. Remond, 95 N. J. Eq. 650, 123 A. 716, holding that the desertion period specified by the statute is not required to be, or to include, the two years next preceding suit; that, where a two-year desertion has been completed, the subsequent pendency of other divorce proceedings between the parties during the two years next preceding the suit sub judice does not affect the prior completed desertion. After the maturing of the right to divorce by the completion of a two years' willful, continued, and obstinate desertion, it is in no wise requisite that, during such time as may intervene prior to the commencement of suit, the separation shall continue to be willful and obstinate.