Grace v. Grace

WHITE, J. Plaintiff has appealed from a judgment of dismissal entered after a demurrer to her amended complaint was sustained without leave to amend.

The action was commenced August 13, 1947. Plaintiff alleged that she and defendant were married in 1940; that in April, 1943, plaintiff brought an action for separate maintenance, in which action an answer was filed by the defendant, a trial of the issues was had on April 24, 1944, and the matter taken under submission by the trial judge. Plaintiff then alleged, in substance, that her husband was constantly im[396]portuning her to seek an absolute divorce and threatening that if she did not she would receive no support from him; that her attorney also persistently suggested to plaintiff that the court would deny her support unless she would consent to amend her complaint to one for divorce; that “as a result of the emotional strain undergone by plaintiff in the contest and trial of her aforesaid action, plaintiff became extremely nervous and unstable, and suffered great exhaustion and fatigue. ’ ’

The complaint then continues:

“That thereafter, and on May 11, 1944, plaintiff’s said attorney of record summoned her to his office and upon plaintiff’s arrival plaintiff found present there, in addition to her own counsel, the defendant and the defendant’s aforesaid attorney of record; that plaintiff thus unexpectedly found herself closeted in one small office with the said three men, all of whom repeatedly argumentatively and persistently threatened, demanded and insisted that plaintiff should amend her aforesaid cause of action from one seeking separate maintenance to one for divorce, and all of whom threatened and represented that unless plaintiff did so amend the court would not award plaintiff support; that plaintiff protested that such an amendment was contrary to her desires, and that she had always heretofore refused, and would continue to refuse to consent to any such amendment; that notwithstanding plaintiff’s refusals defendant and the aforesaid attorneys continued to urge and insist that plaintiff so amend her said complaint at peril of being denied support from defendant ; that in the midst of said arguments and threats plaintiff became ill and nervous and extremely exhausted and fatigued, worn down, depressed and without further will or strength to resist, and that after a period of time, which plaintiff is not able to measure, and at the insistence of defendant and each and all of the others, and by reason of their repeated representations that the court then having the matter under submission, would not award her support unless the complaint was amended, as aforesaid, plaintiff in a desire to bring the meeting to an end and to escape from the confinement with the defendant and said others in said small room yielded and was prevailed upon to sign and did sign a written stipulation then and there prepared, and in which plaintiff agreed that her aforesaid complaint might be amended, to ask for a divorce from defendant. ’ ’