Wojcik v. Wojcik

Supreme Court of New Jersey

Wojcik v. Wojcik

55 A.2d 9, 140 N.J. Eq. 409, 1947 N.J. LEXIS 503

DecidedSeptember 12, 1947

StatusPublished

This text of 55 A.2d 9 (Wojcik v. Wojcik) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Wojcik v. Wojcik, 55 A.2d 9, 140 N.J. Eq. 409, 1947 N.J. LEXIS 503 (N.J. 1947).

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Opinion

Per Curiam.

This appeal is from a decree in Chancery dismissing a husband’s petition for divorce. Our examination of the record and the arguments of counsel leads to the conclusion that the decree under review should be affirmed.

Ill the brief of the petitioner-appellant he asserted a ground of appeal which does not appear in the petition of appeal. It reads as follows:

“2. That the Court erred in its refusal to continue the hearing of the cause in order to permit the petitioneivappellant’s solicitor to produce a physician to testify as to the capacity of the petitioner-appellant for sexual intercourse, in that such refusal was an abuse of the discretion possessed by the Court under the law and the Rules of the Court of Chancery to order such continuance.”

Not having been properly asserted it forms no basis for consideration. Rule 24, Court of Errors and Appeals.

However, the action of the Advisory Master rested in discretion and his action was not an abuse thereof.

The petition alleged a desertion since 1931. The petition was dated April 2d, 1943, answer of denial was filed and the prosecution of the suit was delayed by the petitioner-appellant until 194U. The desertion was based upon the withdrawal of the defendant-respondent from the conjugal bed.

From the testimony it appears the subject-matter of the defense to the withdrawal, namely, acts of perversion and conduct injurious to the health of the defendant-respondent provoked partially by a prolonged state of impotence of the petitioner-appellant, was not to be classed as surprise. Counsel did not disclose the name of the physician as an examination had not yet been made by one. The prospective testimony was uncertain and speculative as appears from counsel’s statement. And the requirements of rule 120 of the Court of Chancery relating to adjournments were not met.

The decree under review is affirmed.

*411 For affirmance — Trie Chief-Justice, Bodine, Donges, Heher, Colie, Waohbneeld, Eastwood, Burling, Wells, Dill, Freund, McGeei-ian, McLean, Schettino, JJ. 14. For reversal — None.

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Per Curiam.

This appeal is from a decree in Chancery dismissing a husband’s petition for divorce. Our examination of the record and the arguments of counsel leads to the conclusion that the decree under review should be affirmed.

Ill the brief of the petitioner-appellant he asserted a ground of appeal which does not appear in the petition of appeal. It reads as follows:

“2. That the Court erred in its refusal to continue the hearing of the cause in order to permit the petitioneivappellant’s solicitor to produce a physician to testify as to the capacity of the petitioner-appellant for sexual intercourse, in that such refusal was an abuse of the discretion possessed by the Court under the law and the Rules of the Court of Chancery to order such continuance.”

Not having been properly asserted it forms no basis for consideration. Rule 24, Court of Errors and Appeals.

However, the action of the Advisory Master rested in discretion and his action was not an abuse thereof.

The petition alleged a desertion since 1931. The petition was dated April 2d, 1943, answer of denial was filed and the prosecution of the suit was delayed by the petitioner-appellant until 194U. The desertion was based upon the withdrawal of the defendant-respondent from the conjugal bed.

From the testimony it appears the subject-matter of the defense to the withdrawal, namely, acts of perversion and conduct injurious to the health of the defendant-respondent provoked partially by a prolonged state of impotence of the petitioner-appellant, was not to be classed as surprise. Counsel did not disclose the name of the physician as an examination had not yet been made by one. The prospective testimony was uncertain and speculative as appears from counsel’s statement. And the requirements of rule 120 of the Court of Chancery relating to adjournments were not met.

The decree under review is affirmed.

*411 For affirmance — Trie Chief-Justice, Bodine, Donges, Heher, Colie, Waohbneeld, Eastwood, Burling, Wells, Dill, Freund, McGeei-ian, McLean, Schettino, JJ. 14. For reversal — None.

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Bluebook (online)

55 A.2d 9, 140 N.J. Eq. 409, 1947 N.J. LEXIS 503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wojcik-v-wojcik-nj-1947.