13 Wend. 407 | N.Y. Sup. Ct. | 1835
By the Court,
The plaintiff claims as the widow of Bradshaw. Having been previously married to Dr. M’Donald, who is still living, she could not have been the lawful wife of Bradshaw, unless, before her marriage with him, she had been legally divorced from M’Donald. Whether she was so divorced, is the main question in the cause. To prove the divorce, she produces a record of the superior court of Connecticut, and by it the proceeding appears to have been entirely ex parte. It is not alleged in the record that notice was given to the husband, nor is there any appearance by him. The judgment of the court also appears to have been rendered nine days before the petition was presented praying for such judgment. This is probably to be reconciled by the practice of' considering the term as but one day; but if so, still the judgment appears to have been pronounced instanter upon the presentation of the petition. The record recites that the court had heard the plea and evidence of the said Mary, but it is not alleged that the husband appeared, or was served with process or hadnotice, either actual or constructive, by the service of an attachment upon any article of property alleged to be his. In addition to the facts already mentioned, it was proved that soon after the marriage, the plaintiff and her husband removedfrom the state of Connecticut to Bedford in the state of Ne w York, and after they had been gone some time, the plaintiff’s father went after her and brought her home to New-
Were this a civil suit between the parties of the divorce, and the evidence such as I have stated, all the adjudications agree that a judgment so obtained cannot be enforced. The earliest American case affecting the question is a case in the same court, which pronounced the judgment of divorce in this case. Kibbe v. Kibbe, Kirby's R. 119, 126. That was an action of debt upon a judgment obtained in Massachusetts. Process had been issued in that case, and a handkerchief attached as the defendant’s property, and a copy of the process had been left at the defendant’s house, in Connecticut. The
It is said, however, that the proceeding to obtain a divorce in Connecticut is like a proceeding in rem, or proceedings in
It does not become necessary to agitate the difficult question, under what circumstances the courts of the several states have a right to grant divorces, which shall be operative in the other states. We have as yet no adjudications from which any general rules can be considered as established. Our revised statutes have laid down rules for the government of our own courts,and the legislatures of other statutes have done the same in respect to their courts. Several cases however have arisen, in which courts have declared divorces granted in other states inoperative and void out of the states in which they were granted, to which I will refer. In the case of Jackson v. Jackson, 1 Johns. R. 424, the parties were married in this state in September, 1800; they resided here and lived together until the winter of 1802. In October, 1802, the plaintiff (the wife) went to Vermont for the express purpose of obtaining a divorce ; in April, 1803, she returned, having in February preceding obtained a divorce, discharging her from the marriage covenant, and awarding to her alimony to the amount of $1500—to recover which that suit was brought. The ground upon which the divorce was granted was ill treatment and severity of temper; for which causes thelaws of Vermont authorized a divorce a vinculo, when, by the laws of this state, where the contract was entered into, and where the par-
In the case of Barker v. Root, 10 Mass. R. 260, a divorce obtained in Vermont, both parties being domiciled there, was held valid, although the contract of marriage was entered into in Massachusetts. Mr. Justice Sewall remarked that the lex loci, which is to govern married persons, and by which the contract is to be annulled, is not the law of the place where the-contract was made, but where it exists for the time; where the parties have their domicil, and where they are amenable for any violation of their duties in that relation. In Jackson v. Jackson, 1 Johns. R. 432,it was said by Mr. Justice Spencer, in giving the opinion of the court, that the wife was incapable during coverture of obtaining domicil distinct from that of her husband. He refers to 5 Vesey, jun. 787, where it was decided that a son, who was a minor, could not acquire a domicil distinct from his father, because he was not sui juris. If we consider the plaintiff in this case as domiciled in New York, when she applied for and obtained a divorce in Connecticut, then the divorce there should not be considered of any validity. The contract, according to Mr. Justice Sewall, was such as consisted with the law of New York when the parties resided here. Desertion for three years was no cause of divorce in New York, in which state, if at all, the desertion took place. The parties being domiciled here, the offence, if any, having been committed here, was not, according to the argument of Mr. Justice Sewall, such a violation of contract as to justify a divorce here, and of
There were some minor questions arising upon the trial which should be disposed of. The judge was right in rejecting evidence of conversations in the family of the plaintiff’s father as to the residence of Dr. M’Donald; his residence was the fact to be proved. The plaintiff,s admissions would be evidence, but not the declarations of other persons, unless in her presence, and under circumstances which would imply her assent; the declarations of others, under any other circumstances, would be hearsay merety. The question whether the Dr. M’Donald proved to have resided in Westchester county was reputed to be the father of W. M’Donald of Glen’s Falls, I think, should have been answered. The object was not to prove pedigree, and thereby show title .to an estate, •but to prove a fact which was important in the case. It had been shown that W. M’Donald, Esq. was the son of the plaintiff. The fact to be ascertained was, whether the Dr. M’Donald spoken of by the witnesses was the father of W. M’Donald, Esq. Such a person was shown to have resided in Westchester at the time the divorce was obtained. If he was the husband, then the divorce was void; and if he was the father of W. M’Donald, then his identity was proved. The fact of paternity is one to be proved by reputation. No person can swear positively to that fact but the mother. It is true, indeed, that had W. M’Donald himself been called, he might have been asked what his mother, the plaintiff, had told him on that subject; but this, I apprehend, is one of those cases where reputation is sufficient. This point, however, I do not consider important, as in my opinion there was without it testimony enough, to warrant a jury in finding that the husband was without the state of Connecticut, at the time of the divorce, which was the fact to be proved.
New trial granted ; costs to abide the event.