Boller v. Boller

Ingraham, J.: The appeal in this case presents' a question arising under subdivision 2 of seótion 1757 of the Code of Civil Procedure, which does ■ not. appear to have been before decided. The action was, brought for an absolute divorce against the defendant, the complaint, charg241 . ing that she at various times in the months of June, July, August and September, 1903, committed adultery with one T. E. Lawton. The defendant interposed an answer denying the adultery, whereupon on the 12th day of January, 1904, an order was entered by the Special Term directing, that the issues of fact raised by the pleadings be tried by a jury. Those issues were tried on February 5, 1904, and the jury found as to all £>f them in favor of the plaintiff, whereupon the case was brought on at the Special Term for final judgment. On March 25, 1905, before the hearing for final judgment, the corespondent served upon the plaintiff by mail a demand for the service of the summons and complaint. In pursuance of that demand the plaintiff served on the attorney for the corespondent on March 28, 1905, a summons and complaint. Thereafter, on April 1Y, 1905, the corespondent served an answer to the complaint. On the 19th day of April, 1905, the case came on for hearing at •the Special Term ; the plaintiff and the defendant answered ready, but the corespondent appeared and moved that the cause be stricken from the calendar upon the ground that he had received no notice of trial. This motion wass made upon an affidavit of the attorney for the corespondent, stating that since the joinder of issue no notice of trial had been served upon the attorney for the corespondent. The plaintiff then produced a notice dated March 28, 1905, and served on that day, with an admission of service by the attorney for the corespondent, stating that the action'would be brought on for trial at a Special Term of the Supreme Court on the 18th day of April, 1905, at ten o’clock. ■ This notice, having been served before the service of the answer by the corespondent, was returned by the corespondent to the plaintiff’s attorney. The motion to strike the case from the calendar- was denied and an, order duly entered, whereupon the plaintiff on the-extract of the minutes of the Trial Term determining all the issues of fact raised by the answer of the defendant in favor of the plaintiff, applied for an interlocutory judgment of divorce. The counsel for the defendant and counsel for the corespondent objected to proceedings upon the ground that an issue had been raised by the answer of the corespondent which had not been disposed of. The court, however, overruled this — 242 — objection and filed a decision, finding the facts in accordance with the admission in the original pleadings and'the finding of the jury, and directed a judgment awarding the plaintiff a divorce from the defendant. Both the defendant and the corespondent then submitted what are called requests to find, which simply related to the proceedings in the action. The court refused these' proposed findings and awarded the plaintiff, an interlocutory judgment. The. refusal of the court to find these proposed findings of fact and" conclusions of law were excepted to, and the defendant and corespondent appeal from’the interlocutory judgment, the corespondent stating in his notice of appeal.that lie intended to bring up for review the order denying -his motion' to strike .said case" from the calendar, and these .two appeals are now before us for determination. The question is,, as to what right the Code of Civil Procedure awards to a corespondent who thus injects himself into a controversy after the issues raised by the pleadings have been disposed pf. Prior to the year 1899 there was no provision authorizing a corespondent to be heard in an action for divorce. Section 1757 of the Code as then existing consisted of subdivision 1 of the section as it now exists. (See Laws of 1880, chap. 178.) By chapter 661 of theLaws of 1899 subdivision 2 of section 1757 of the Code was added. This, subdivision provides that “ in an action ’brought to obtain a divorce -on the ground of adultery the plaintiff or defendant may serve a copy of his pleading.on the co-respondent named therein.” It is then provided that if .no such service is made “ any co-i’espoudent named, in any of the pleadings shall have the right, at any time before the entry of judgment, to appear either iii person or by attorney in said action and demand of plaintiff’s attorney a copy of the summons and complaint, which mus.t be served within ten. days thereafter, and lie may appear to defend such, action, so far as the issues affect such co-respondent. , In case no one of the allegations of adultery controverted by such co-respondent shall be proved, such co-re^ spondent shall be entitled to a bill of costs against the person naming him as such co-respondent, which bill of costs shall consist only of the sum now allowed by law as a trial fee and disbursements, and such co-resp6'ndent shall be entitled to have: an execution, issue for the collection of the same,” ' It.will be noticed that this statute does not in express terms make — 243 — a corespondent a party to the action nor allow him. to serve an answer to the complaint. He is not given the rights of a party to the action. He is not entitled to interfere in the determination of any issue of law or fact, except that he is allowed to “appear to defend such action so far as the issues affect such co-respondent.” With all of the questions presented he has no concern, except so far as he is directly affected, but when he is served with the pleading he has a right to defend so far as he is affected by any charge made in the pleading. This provision was intended to give to a corespondent, who thus brings himself into the litigation between the plaintiff and the defendant, the right to such a defense as is available at the time he is brought in by the service of the summons and complaint upon him. He comes into the action, not as a party, but as authorized to defend a charge made against him, and his defense, it seems to me, must be confined to a defense of the undisposed of issues at the time he comes into the litigation. In determining the intention of the Legislature it is important to consider what the statute does not do. It does not make a corespondent a party to the action. It does not allow him to answer the complaint. It does not affect the validity of the proceedings already had at the time of service of process.upon him. It does not allow a judgment against him, except for a trial fee and disbursements if he is unsuccessful in the defense. When he voluntarily appears and demands service of the summons and complaint, he is entitled to áppear and defend the action so far as the issues affect him; but when in the action in which he thus appears there are no issues undisposed of, and all that’ remains to be done is the application for final judgment, it does not appear to have been the intention to create issues by his appearance which must he disposed of before I judgment can be granted. I would have no doubt of the power of *j the court upon a proper case presented to set aside a verdict, decision or any other proceeding that had been completed in the action before the appearance of the corespondent, and thus give him an opportunity to defend; but no such application in this case was made, and no facts were presented that would justify the granting of such an application. The action had been at issue for some time; the corespondent had had notice of the charges against him, for he was present at the trial and was examined as a witness on — 244 — behalf of the defendant and took part in the trial.. It is. difficult to understand what more he could have done if he had before that time appeared in the action aiyl had been.served with the summons ■ aiid complaint. It would certainly be an anomaly to hold that in an action where a wife charged with the commission of adultery had been found guilty after a fair trial, there could be in the same action another- trial of the same issue; because a person not a party to the action had injected himself into th,e litigation and denied the ■ adultery of which the wife had been found guilty upon a trial. To sustain the contention of the corespondent it would be necessary'to hold that, by allowing him to appear .and defend, all of. the prior proceedings, in the action after the service of the pleadings were .vacated, notwithstanding the fact that the principal defendant — the only person against whom there could be a judgment ■—• had been found guilty of the charges made against her after a trial in which she had duly appeared and defended. If there had been a sufficient - number of. corespondents, and each one should time his appearance in the action so as to come in just before final judgment was entered, a number of trials could'be had, only limited' by the number of corespondents — a proceeding which certainly was not contemplated when this act was passed. -The Code contemplates but one trial of an action. That trial has been had, and, so-far’.as appears, it was in . all respects regular and the issues of fact were determined. . If that determination has become final no new trial of that issue can be had, unless the verdict be set aside either on motion or upon appeal. If that determination as to the - issues raised by the answer of' the defendant'is final,'and the issue's raised by the answer-'of the corespondent should be tried and a verdict had in his favor, what judgment conld be entered? "The defendant would not he entitled to judgment, as the issues as against her have been - determined in favor of the plaintiff; and no judgment could be rendered in favor of the corespondent; as no such" judgment is authorized by the Code. It seems plain that, such a result wets- not intended, but the intention of the Legislature can he given full effect by holding that' when- the corespondent comes into an action for divorce he is entitled to defend it as to all subsequent proceedings, so far as the prosecution of the cause affects, the charges made against him. If an .issue of fact as to the adultery remained undisposed of, he .would be — 245 — entitled to take part in the trial of that issue, but if that issue had already been determined he would be'confined to a defense of the subsequent proceedings, including a right to appeal. I have no doubt of the power of the court to set aside a verdict wliere it is necessary to give the corespondent a hearing for his protection; but certainly where he had full knowledge of the action and the charges made, and was a witness on the trial, his subsequent appearance should not affect the validity of the determinatiop of the issues and compel the plaintiff again to go through with the trial which has been determined in his favor. Ho authorities are cited by, either party which affect this question. If it should be true, as claimed- by the appellant, that this judgment will affect the corespondent as an adjudication against him, this situation is in consequence of his own action in appearing in the action after the issues of fact had been disposed of, he having full notice of the condition of the action at the time he required . the plaintiff to serve upon him a copy of the summons and complaint. The cases of which Wood v. Swift (81 N. Y. 31) is an example have no application. There the action had been tried and submitted to a referee, who. had not filed his report. At that time, a person interested in the result, as being a claimant of' the fund to recover which the action was brought, was brought in as a defendant. As a part of the order bringing in this new defendant, the court ordered that the case should remain, ■ continue and be tried before a referee with the same force and effect as if all parties had been parties from the beginning of the action. The judgment that would be entered would be against th,e new defendant, determining her right to the fund to recover which the action was brought, and if she was not successful in the action the judgment would foreclose her of any right to that fund. In such a case the trial theretofore had could not bind the defendant who had been made a party, as the judgment that would be rendered would be a judgment directly against her. But, as before stated, no such condition" exists here. There can be no judgment against this corespondent. The plaintiff asks for no judgment against him, and the court has awarded none. His position in the action is an anomaly and evidently allowed because of the peculiar nature of the action and the danger of collusion between the husband and wife, involving a charge — 246 — against a third yperson, who.has no other opportunity of protecting himself from the charge, and certainly when such a third person, who had notice of. the charge made against him and xvas present at the trial- which determined the truth of that charge, deliberately. delays appearing until after that charge has been 'finally determined, he has no cause of complaint because the court refuses to reopen' the case and allow him a retrial of the issues. In determining this appeal it is sufficient to hold that the provisions of this section of ' the Code do not invalidate the prior proceedings in an action upon the appearance of a corespondent, and that where he appears in such an action he comes in subject to its condition at the time he appears, and that the former proceedings are not thereby invalidated,. and in this case no facts are presented to .show that. the protection of the corespondent in any way requires that there should be a new trial of the issues already disposed of. It follows that the judgment'appealed from should be affirmed, with costs. Laughlin and Clarke, JJ., concurred; O’Brien, P. J., and ■McLaughlin, J., dissented.'