Merrill v. Merrill

New Jersey Court of Chancery

Merrill v. Merrill

123 A. 613, 95 N.J. Eq. 398, 10 Stock. 398, 1924 N.J. Ch. LEXIS 249

CourtNew Jersey Court of Chancery

DecidedMarch 3, 1924

StatusPublished

Cited by2 cases

This text of 123 A. 613 (Merrill v. Merrill) is published on Counsel Stack Legal Research, covering New Jersey Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Merrill v. Merrill, 123 A. 613, 95 N.J. Eq. 398, 10 Stock. 398, 1924 N.J. Ch. LEXIS 249 (N.J. Ct. App. 1924).

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Opinion

Backes, Y. C.

The petition was filed September 26th, 1922, and alleges willful, continued and obstinate desertion from. August 6th, 1920. Previously, on March- 18th, 1921, the petitioner filed a! petition for divorce. That suit was not dismissed until September 22d, 1922, and the master advised against a divorce. The petitioner’s counsel recognizes the rule that the time consumed by another action cannot ordinarily be reckoned as part of the statutory period, since the law sanctions the parties living apart during the pendency of the suit and does not regard the separation during that time to be willful and obstinate. Barbour v. Barbour, 94 N. J. Eq. 7. But he contends that the rule should not be applied in this case because the former suit was not brought in good faith, and he cites Hartpence v. Hartpence, 121 Atl. Rep. 513. The former petition, filed March 18th, 1921, alleged [399]*399that the desertion began January 2d, 1919. This, counsel says, was a mistake, which he discovered shortly before he dismissed the suit, and which, with the consent of defendant’s solicitor, he sought to have dismissed “without prejudice,” but which the court would not allow. The action was improvidently brought; but I fail to see that it was not brougnt in good faith. It was brought by the present petitioner and, on its face, for legal cause, and, obviously, during that time the statutory period did not run. Counsel is of the impression that because the defendant’s solicitor consented to the dismissal of the prior suit, “without prejudice” it indicated that notwithstanding its pendency the defendant persisted in the desertion, willfully and obstinately. I am unable to draw that inference, even if the inference would aid him, which I doubt. A dismissal of a suit “without prejudice” means nothing more than that it may be brought again.

Exception overruled. .

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Backes, Y. C.

The petition was filed September 26th, 1922, and alleges willful, continued and obstinate desertion from. August 6th, 1920. Previously, on March- 18th, 1921, the petitioner filed a! petition for divorce. That suit was not dismissed until September 22d, 1922, and the master advised against a divorce. The petitioner’s counsel recognizes the rule that the time consumed by another action cannot ordinarily be reckoned as part of the statutory period, since the law sanctions the parties living apart during the pendency of the suit and does not regard the separation during that time to be willful and obstinate. Barbour v. Barbour, 94 N. J. Eq. 7. But he contends that the rule should not be applied in this case because the former suit was not brought in good faith, and he cites Hartpence v. Hartpence, 121 Atl. Rep. 513. The former petition, filed March 18th, 1921, alleged [399]*399that the desertion began January 2d, 1919. This, counsel says, was a mistake, which he discovered shortly before he dismissed the suit, and which, with the consent of defendant’s solicitor, he sought to have dismissed “without prejudice,” but which the court would not allow. The action was improvidently brought; but I fail to see that it was not brougnt in good faith. It was brought by the present petitioner and, on its face, for legal cause, and, obviously, during that time the statutory period did not run. Counsel is of the impression that because the defendant’s solicitor consented to the dismissal of the prior suit, “without prejudice” it indicated that notwithstanding its pendency the defendant persisted in the desertion, willfully and obstinately. I am unable to draw that inference, even if the inference would aid him, which I doubt. A dismissal of a suit “without prejudice” means nothing more than that it may be brought again.

Exception overruled. .

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Bluebook (online)

123 A. 613, 95 N.J. Eq. 398, 10 Stock. 398, 1924 N.J. Ch. LEXIS 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merrill-v-merrill-njch-1924.

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