Everingham v. Everingham

2 N.J. Misc. 1049, 1924 N.J. Ch. LEXIS 55

• Court: New Jersey Court of Chancery
• Decided: October 28, 1924
• Status: Published

Opinion

Ingersoll, V. C.

The wife filed a petition for divorce charging the defendant with adultery with one Hattie Moore On divers days in April and May, 1923.

The proven facts are: That the defendant and Hattie Moore, and Thomas Quinn and an unknown woman, were on the night of May 9th, 1923, at a drinking place in Vine-land; that from there they went to the Baker House, at Vineland, where Quinn registered the four as two parties, each of man and wife, the names upon the register being undecipherable. Each couple (man and woman) were assigned to bedrooms. They went to the rooms about eleven or eleven-thirty p. m., and in the morning, some time before noon, Quilín went to the room occupied by Everingham and the Moore woman and found them therein.

Everingham denies committing adultery that night, stating that he went out of the room and was so drunk he was unable to find it again until morning. He admits, however, that he was in the room with the woman about an. hour in the night and an additional hour in the morning. There can he no doubt of their guilt.

The defendant, however, filed an answer and counterclaim alleging adultery on the part of the petitioner.

Later, he filed a paper in form withdrawing the answer and counter-claim, and upon the petitioner applying for an order revoking the order of reference to a vice-rcliancellor, an order was filed denying the application for leave to withdraw the answer, but granting the application to- withdraw the counter-claim.

The solicitor of the defendant, upon application to- the court, was relieved of representing the defendaait at the trial, and an order was made assigning LeRoy W. Loder to actively defend the cause.

At the hearing Judge Loder applied and was granted leave to file an amended answer and counter-claim, alleging adultery at the same time and with the same person as in the original counter-claim filed.

Leave was granted and testimony taken. At the close of the case the court suggested that, although the solicitor of the petitioner had consented to the filing of the amended answer and counter-claim, the petitioner was entitled to have a reasonable time to produce the person charged as par Li ceps criminis, or for that person to apply to be made a party. The hearing was continued until October 28th, 1921. The petitioner produced no* additional testimony, nor has the party charged applied to be made a party to the cause. The hearing is closed. Believing the testimony produced, the1 guilt of the petitioner is clear.

There can be no reasonable doubt of the truthfulness of the testimony of Miss Mayhew and Mrs. Miskelly.

The facts proven are that the petitioner applied to Miss Mayhew for the rent of a room, giving her name as Mrs. Reed (the name of the co-respondent), and stated her husband would call, and, if the room was satisfactory, they would take it for an extended stay. The man came, examined the room, and they engaged it. The woman stayed at the room (being engaged in a factory in the- same city), and the man came several times a week, spending the night, remaining until about daybreak a number of times.

The result is that the petition and the cross counter-claim will each be dismissed.