Amory v. Amory

1 F. Cas. 774 | U.S. Circuit Court for the District of Eastern Wisconsin | 1872

MILLER, District Judge.

Complainant married James Amory as the widow of Williams. Amory had a right to consider her competent to enter into the marriage relation with him. They cohabited as husband and wife for nearly ten years, and during that time the facts of recognition occurred, he believing her to be his lawful wife. It coming to his knowledge that they were not lawfully married, for the reason stated, he was not estopped in the action for a divorce from pleading and proving that her husband. Williams, was not dead at the date of his own marriage with her the 12th of Hareh, 1816. She imposed on him in marrying him before she had reasonable or legal cause of belief of Williams’ death. She married him before legal presumption of death by the expiration of seven years from the time Williams was last heard of. And it was proven before the referee that a letter from him had been- recently- received. She is in fault in this respect, not James Amory. Whenever he discovered complainant’s want of legal right to become his wife, it became his duty to repudiate the marriage with her. The superior court was correct in disregarding the alleged facts of recognition in the petition to open the judgment.

This bill is virtually an appeal to this court from the judgment in the divorce case, and also from the orders and proceedings in the county and circuit courts of Fond du Lac, and of the supreme court of this state, and is sought to be sustained upon the alleged fraud of complainant’s attorney, Shaffer. This court is not constituted to review and reverse proceedings and judgments of state courts. It is our duty to give full faith and credit to those judicial proceedings and records. It is well understood that the courts of the United States will not revise or correct judgments or decrees of state courts, where the jurisdiction of those courts appears in the record. A judgment or decree pronounced by a competent tribunal against a party having notice' of the pendency of the suit is to be regarded by every other coordinate tribunal, and if the judgment or decree be erroneous, the error can be corrected only by a superior appellate tribunal. The binding distinction is between judgments or decrees merely void, and such as are voidable only; the former are binding nowhere, the latter everywhere, until reversed by a superior authority. Hollingsworth v. Barbour, 4 Pet. [29 U. S.] 466-470. The record in the action for divorce exhibits complete jurisdiction ¡n the courts of the state of New York, and a conclusive judgment or decree not void anywhere. The complainant, by her bill and accompanying exhibits, attempts to show that the judgment or decree of that court is voidable for fraud on the part of her attorney. This she cannot do in this court. She must appeal for relief to the courts of the state of New York.

It is well settled by authority and long practice, that to an action on a judgment record, nul tiel record is the proper and only plea. The plea of nil debet is demurrable. Mills v. Duryee, 7 Cranch, [11 U. S.] 481. If it is found on inspection of the record, that the court had jurisdiction of the subject matter and of the parties, the judgment is conclusive. For fraud in obtaining jurisdiction, either by an unauthorized appearance of defendant by an attorney, or by confession of judgment by an attorney without authority, or by a false return to the original process, or by any fraud on the party, relief can only be obtained in the court possessed of the original record. The tribunal wherein an action is pending, on representation of the facts, usually gives the party time to make his application for relief to the original court; and upon a certificate that the judgment is reversed or vacated, the plea of nul tiel record becomes available. The original judgment or decree of a court having jurisdiction cannot be disturbed in a co-ordinate tribunal, or in a collateral action. It is conclusive on the merits. Landes v. Perkins, 12 Mo. 254; Landes v. Brant, 10 How. [51 U. S.] 349-371; Grignon v. Astor, 2 How. [43 U. S.] 319; McPherson v. Cunliff, 11 Serg. & R. 422; Dunlap v. Stetson, [Case No. 4,164;] Diggs v. Wolcott, 4 Cranch, [8 U. S.] 179; Elliott v. Peirsol, 1 Pet. [26 U. S.] 329; McKim v. Voorhies, 7 Cranch, [11 U. S.] 279; M’Elmoyle v. Cohen, 13 Pet. [38 U. S.] 312; Benton v. Burgot, 10 Serg. & E. 240; Huff v. Hutchinson, 14 How. [55 U. S.] 586; Parrish v. Ferris, 2 Black, [67 U. S.] 606. Pleas to the contrary, of payment, or satisfaction, or release of the judgment, or of the statute of limitations, are allowable. Upon the same principle, the judgments and orders of the courts of this state are conclusive in a collateral action or proceeding. The complainant, not having prosecuted her action for divorce with proper diligence, cannot come to this court for relief, on the ground that an appeal was pending from a discretionary order of the court denying her peti-tion for a rehearing, at the time of the death of James Amory, particularly as that order was correct and justifiable. The court of New York adjudged that complainant was not the wife of James Amory, consequently she cannot set up a claim here as his widow.

The prayer of the bill, that the defendants as executors of the last will and testament of James Amory, deceased, may be restrained and enjoined from executing the will, under the orders of the county court admitting the same to probate, involves direct interference on the part of this court with an exclusive and independent power and duty of that court. That court possesses exclusive and independent probate powers. This court has none. The orders of that court within its jurisdiction are as conclusive as the judgments of this court. That court has charge of the estate of the testator, and has the lawful power to admit the will to probate, to issue letters testamentary, and to control the action of the executors according to the will, who are.trustees of the legatees. All persons interested in the estate have lawful right to look to that court for protection. That court has jurisdiction of the probate of the will and of issuing letters testamentary, and this complainant appeared and had her day in that court, the proceedings of which are sanctioned by the supreme court of the state. She cannot, as a no¿-resident of the state, claim the j urisdiction and action of this court, upon the facts pleaded in her hill with the exhibits annexed as part thereof, and the demurrer must be sustained and the bill dismissed.

NOTE, [from original report.] The above case was heard before Judges Drummond and Miller, the former being of opinion that the complainant might, in this court, show fraud in the proceedings in the courts of New York. No certificate of disagreement, however, had been signed at the time of the passage of the act of congress of June 1st, 1S72. (17 Stat. 196,) providing that in cases of a difference of opinion between the circuit and district judges the opinion of the former shall prevail, and thereupon, upon Judge Drummond’s suggestion that the same point could be made by answer as well as by demurrer, the demurrer was overruled, with leave to answer, and the case is still pending. The opinion and note in American Law Register for September, 1S73, are not strictly correct, the case having been heard at the January term, 1S72, and decided at the April term, and prior to the passage of the act of congress. The opinion of Judge Drummond is reserved until the final hearing of the cause.