Blain v. Blain, 45 Vt. 538

Blain v. Blain

45 Vt. 538 | Vt. | 1873

The opinion of the court was delivered by

Redfield, J.

This petition for divorce was made and dated June 19th, and the subpoena and order of publication were signed and issued October 18th, 1871. At the date of the petition, the two year's’ residence of the libellant in this state provided by statute, had not elapsed ; but more than two years at the time the subpoena issued. A writ is “ issued,” or a suit is “ instituted,” for some purposes, -at the time it becomes a perfected process ; and sometimes the service of the writ is the commencement of the suit. But we are not aware that the making a writ or petition, without summons or citation, and signed by no magistrate or judicial authority, has ever been held the commencement of the suit, or the “ bringing of the petition or bill.'”

II. The defendant offered the 'exemplified copy of the record of the supreme judicial court for Grafton county, New Hampshire, of a decree dismissing the petition for divorce between these parties, wherein the alleged causes for divorce were “ ex*544treme cruelty and drunkenness.” The petitioner insists that such copy of record is not admissible, because ; 1st, it is not properly exemplified; 2d, it should have been specially pleaded; 3d, it ■ cannot operate as a bar to these proceedings.

The authentication of the record is in substantial compliance with the act of congress, and we think it is properly authenticated. 1 Greenl. Ev. §§504-5-6.

It- is the duty of the court to see that society and the public receive no detriment in proceedings affecting the marital relations of citizens. Petitions for divorce are addressed to the judicial discretion of the court; and courts are justified, in some form, in reaching and hearing the proof of every essential fact touching the character of such relation. The manner of pleading is measurably addressed to the discretion of the court. And, although in common law proceedings, a former adjudication should be specially pleaded as a bar, dr estoppel, where it can be; yet, we think it not error that the court admitted the copy of the record, without special plea.

The more important question is, as to the effect of that adjudication upon these proceedings.. “ Extreme cruelty ” and “ intolerable severity,” as causes for divorce, are substantially identical. And a decree annulling the marriage relation, by a court having jurisdiction,’ cannot be collaterally impeached in another state or another jurisdiction.

The record asserts the appearance of both parties ; • and, prima facie at least, the court had jurisdiction of the cáuse, and of the parties.

A former adjudication between the same parties, operates as an estoppel, because the same issues have been determined by the judgment of the court having jurisdiction of the parties and the cause. But the judgment of the court of another state can never have any greater force or more extended operation than that given to it by the laws of the state where pronounced, from which it derives its whole force and virtue. Darcey v. Ketcham, 11 How. 165; Harris v. Harderman, 14 How. 334. This record discloses that the petitioner failed to obtain a decree; and that her petition was dismissed for the want of sufficient proof to *545sustain the averments. The averments in the record, of “ cruelty,” as cause for divorce, are several, and special as to time, but not as to place. There is one averment that the defendant treated her with cruelty on a journey from Piermont, N. H. to Brooklyn, N. Y.; and continued the same after her arrival at the latter place. But the laws of New Hampshire are not pleaded or given in evidence, nor is there any averment or proof' that the courts of New Hampshire might lawfully annul a marriage for causes that accrued while the parties were domiciled in another state, and without its jurisdiction. Had the court made a decree dissolving the marriage, a presumption would have arisen in favor of the jurisdiction which the court had exercised. But the court dismissed this petition ; and nothing appears in the record indicating that the court took jurisdiction of, or made inquiry into, causes accruing without the state. The exceptions state that “the acts -of intolerable severity proved, which accrued out of the state of New Hampshire, and in the state of New York, while the parties resided in New York, were alone sufficient cause to entitle the petitioner to a bill.” This bill was therefore granted for sufficient cause, which does not appear by this record, to have been within the jurisdiction, and adjudicated in the former case. 2 Am. Lead. Cas. 798 ; Big. on Estop. 181.

We find no error, and the judgment of the county court is affirmed.