On separate trial of legal issues.
This matter is before the court on a separate trial of the law issues in the case (Rules 3:42-2; 3:30-2 and 5:2-1).
Plaintiff sues as the widow of Edward C. Reeves, deceased. The case pleaded is that Reeves, having served the prescribed time in good standing as a member of the Jersey City Police Department, was in 1936 retired therefrom at half-pay; that at the time of his death in December, 1940, he was still in good standing as a pensioner of the defendant pension fund; that plaintiff has not remarried and that all other facts and circumstances legally necessary to plaintiff's qualification under R.S. 43:16-3 as successor to her husband's pension rights at the time of his death were and are in all respects existent; and that notwithstanding the premises defendants have at all times failed and refused to recognize or satisfy plaintiff's right to the pension. Plaintiff demands as damages
the accrued arrearage of pension payments, with interest, and also that judgment be entered "in such form as may be required to establish the right of the plaintiff as the widow of said Edward C. Reeves, deceased, to receive a pension for so long as she remains unmarried equal to one-half of the pay of her deceased husband at the time of his retirement but not exceeding one thousand dollars, payable in such manner as pensions are paid that become payable under the provisions of R.S. 43:16-3."
There have been three prior suits by this plaintiff against legal entities and persons charged by her at the time as responsible for the administration of the pension fund respecting which her rights were and are claimed. The issues of law to be decided arise from the defense that in consequence of either or all of these prior litigations the subject matter of the present suit is res judicata or is similarly barred by estoppel.
The earliest of these prior suits was instituted in June, 1941, in the Second District Court of Jersey City and was brought to recover the accrued pension arrearages claimed as of that date. One of the defenses interposed declared that plaintiff was not the widow of Reeves, it being alleged that the marriage between them had been dissolved by a decree of divorce entered in the State of Florida at the suit of the husband on May 9, 1940. Whether that defense was finally established on the merits is still an open question and constitutes the core of the instant problem, as will appear.
Of the other two suits mentioned, one was by a bill in equity; the other was an action in the New Jersey Supreme Court. The records in these cases will be reviewed in their order.
The bill in Chancery was filed in October, 1941. In addition to the basic allegations bearing on her claimed right to the pension, plaintiff there pleaded that the Florida divorce by which she had been confronted in the district court action was the product of fraud, having been procured by perjured testimony, and that no process had been served on her in the
cause. There was a motion to dismiss the bill on the grounds that (1) it disclosed no cause of action, this for the stated reasons that plaintiff had an adequate remedy at law, that the deceased husband's second wife was a necessary party to the suit and that plaintiff, as complainant in equity, was guilty of laches; (2) the Court of Chancery lacked jurisdiction; (3) the subject matter of the bill in consequence of the aforementioned action in the district court was res judicata. The motion to strike was granted and the bill dismissed. The grounds for the dismissal as set forth in the order therefor were that the bill "discloses no cause of action and that this Court has no jurisdiction to grant the relief prayed for." This determination can mean only that the court adjudged the bill of complaint to be deficient in its failure to show a cause in equity; in other words, that the court was without jurisdiction in the case as made by the bill. Manifestly, there was no disposition on the merits, and this result of plaintiff's attempt to litigate her claim in equity constitutes no bar to her present action nor one that renders its subject matter res judicata.
Plaintiff's action in the New Jersey Supreme Court was brought in May, 1945, after the dismissal of the Chancery suit. There was a motion to strike the complaint. It was decided on the ground, inter alia , that the City of Jersey City, a defendant therein, was neither a proper nor a necessary party. Circuit Judge Thomas Brown, before whom the motion came as Supreme Court Commissioner, filed a memorandum which states in part: "The motion to strike the complaint against the defendant, City of Jersey City, is granted as that defendant has no adverse interest against the plaintiff in the controversy and is not a necessary party for the complete determination of any question involved in the suit." In accordance with leave given, an amended complaint was filed. The city again was ...