On appeal from the Superior Court, Chancery Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.
The appellant instituted an action for separate maintenance in two counts, the first alleging her husband had separated himself from her, that she had lived separate and apart from him with his acquiescence since May 1952, and that he has at all times refused and neglected to maintain and provide for her; the second count charged the appellant was compelled to separate herself from her husband because of his extreme cruelty and as a result, within the meaning of the statute, he abandoned the plaintiff and refused and neglected to maintain and provide for her and her two infant children.
We are in accord with the appellant's view that no useful purpose would be served by a seriatim repetition of the matrimonial offenses or the testimony supporting and denying them. Suffice it to say they were numerous and varied and the evidence offered by the parties was in sharp conflict.
The defendant is an attorney at law of this State and married the appellant on November 15, 1934. They lived together, excepting for a short period of time, until November 12, 1952, when she left him, taking their two children with her. The day before the separation she filed her maintenance action, but she returned to their home with the children in February of 1953.
The acts of cruelty complained of by the appellant seemingly started at the date of their marriage, which proved to be not too successful. As early as June 1937 the husband instituted a suit against his wife on the ground of adultery, which he subsequently abandoned.
All the acts of cruelty alleged were denied and covered in detail by the testimony given, much of which was corroborated.
The court determined "that the plaintiff had not sustained the truth of the allegations of the complaint" and dismissed the action, with prejudice and without costs or counsel fee to either party.
The wife appealed and we certified the cause on our own motion.
She cites seven different reasons for reversal, but the important and noteworthy aspect of the case is that she does not contend her proofs at the trial below sufficiently established an abandonment of her by the defendant either actual or constructive, nor does she assert that the disposition of the trial court was contrary to the weight of the evidence or that on the merits she was improperly denied the relief prayed for. Rather, she asks a reversal based on the court's violation of our court rules and prays her proofs may be completed and a reasonable counsel fee be allowed to her attorney.
Upon the filing of the complaint, the appellant obtained an order from a judge other than the trial judge permitting the examination of the defendant on oral depositions as now provided for by R.R. 4:16-1.
Subsequently, at the instance of the defendant, an order to show cause was granted requiring the appellant to show cause why the taking of the depositions should not be vacated and the operation of the former order stayed.
The trial court later struck out the interrogatories propounded to the defendant and they were never answered.
The appellant cites Abbatemarco v. Colton, 31 N.J. Super. 181 (App. Div. 1954), to the effect that the right to examine is a "substantial right" and says the action of the trial court excusing the answering of the interrogatories was "capricious and wholly unjustified."
We have no defense to offer for the court below in this respect. The relief prayed for should have been granted, but we are not persuaded that the appellant was prejudiced or suffered harm requiring the judgment entered be vacated or reversed. The present appeal is from final judgment and there is nothing before us to show that if the depositions had been taken there was the slightest possibility that the result would have been otherwise.
Error is alleged in that the final judgment was entered ex parte, without notice to the plaintiff and without being preceded or accompanied by the court's ...