Rosenberg v. Rosenberg

GIEGERICH, J.

This ease is an extraordinary and distressing one: The plaintiff procured a divorce from the defendant upon the ground of her alleged adultery. She was living in Russia at the time, and service of the summons and complaint was made upon her by publication and by mailing a copy thereof to her at her alleged address in Russia. After the final judgment of divorce was obtained, on the 21st day of March, 1907, the plaintiff married another woman, who, at the time the mo-j tion was made, was pregnant with child. The' defendant has now returned to this country,1 and moves to vacate and set aside the decree] of divorce and for leave to interpose an answer,; asserting her innocence of the charge of adul-f tery and claiming that she had no knowledge! of the action against her for a divorce until after her return to this country in October, 1908, and shortly before she brought on this notice. The affidavits are numerous, and some of them voluminous, and are flatly contradic-j tory on many plain points of fact, to such an1 extent that it is extremely difficult to reach! a conclusion as to where the truth lies as tol most of such matters. I am satisfied, however,! upon the whole case, that the defendant had! no knowledge of the existence of the action aw the time it was in progress. The most damfj aging and significant fact against the plaintiffi is his testimony, given before the court at th4 time his case was heard, that there was no, issue of the marriage. As a matter of -facti there were and are two children. He himself had seen the elder one, and had knowledge of the existence of the other one, as is plainly shown by his letters to the defendant, in which he mentions such second child. His excuse now is that he believed at the time of the hear-i ing that there never had been any second child, born, and that the first child had died; bui? the reasons he advances for this alleged belief and for the positive testimony he gave are unsubstantial and unsatisfactory to a degree. It will be a hard case for the innocent woman who subsequently married the plaintiff if the defendant succeeds in her resistance to the divorce action; but it would be a still harder case for the defendant, if she be in truth guiltless, if the present judgment should be allowed to stand and she deprived of any opportunity to prove her innocence and establish' her marial rights. The motion is granted, with $10 osts.