223 A.D. 471 | N.Y. App. Div. | 1928
The action is brought to secure a declaratory judgment which will affect the descent and distribution of property. The plaintiffs are the four children of Byron G. Dodge, who died intestate, leaving real and personal property in this State and elsewhere. The real issue to be determined is whether or not the defendant Lillian Campbell, also called Mary Alexander Dodge, is the widow of the deceased and so entitled to interests in his property. The appeal is from an order denying defendants’ motion to dismiss the complaint because insufficient on the face thereof. The facts as stated in the complaint are accepted.
Appellants’ proposition is that the court below erred in holding that, under section 7-a, the petitioner must have the jurisdictional
This section (7-a) was a new section enacted by section -3 of chapter 279 of the Laws of 1922, and took effect March 25, 1922. It has been held to be constitutional. (Frankish v. Frankish, 206 App. Div. 301.) It reads as follows: “ Dissolution of marriage on ground of absence. A party to a marriage may present to the Supreme Court a duly verified petition showing that the husband or wife of such party has absented himself or herself for five successive years then last past without being known to such party to be Uving during that time; that such party believes such husband or wife to be dead; and that a diligent search has been made to discover evidence showing that such husband or wife is living, and no such
Generally the jurisdiction of the court in such a statutory proceeding depends upon the presentation of a proper petition conforming with the act. The court has therein “ a special limited statutory power, which can only be exercised under the limitations and circumstances prescribed in the statute.” (People ex rel. Rogers v. Spencer, 55 N. Y. 1.) Apparently in the petition for dissolution of the° Campbell marriage the facts required to be stated in the petition are set forth. But the question presented here is whether or not the jurisdictional facts required in actions for divorce or separation must be stated, although not mentioned in the statute. We think they must be stated. (Berlinsky v. Berlinsky, 204 App. Div. 480; appeal dismissed, 237 N. Y. 531.) In that case annulment of the marriage between the parties was asked on the ground of fraud. The parties were married in Maryland and domiciled there at the time of separation. The plaintiff was a resident of this State and the defendant a resident of Maryland when the action was commenced. The summons was served by publication. ' It was held that no jurisdiction of defendant was acquired thereby. The court said (p. 483): “ The power of the court to declare a marriage void is now controlled by statute, and in the absence of some statutory authority no such power exists. [Citing authorities.] An action for annulment of marriage is unquestionably in personam. * * * The Civil Practice Act contains no provision relative to jurisdiction in such an action. In actions for divorce and for separation express provision is made by statute with reference to the jurisdictional requirements for the maintenance of such actions. * * * The Civil Practice Act is thus [sections 1147, 1162 cited] specific as to actions for a divorce and for a separation, but is entirely silent concerning the jurisdictional requirements in actions for annulment. It seems to me that-in the absence of statutory provision with reference
This argument applies to a proceeding under section 7-a as well as to an action for annulment. Unless a statute should so specifically provide we think the jurisdictional facts necessary to give the courts of this State jurisdiction over defendants in actions brought for divorce or separation must be established to entitle a petitioner to an order of dissolution under section 7-a. A dissolution order under this section is the equivalent of an absolute divorce. We do not think the Legislature intended to open our courts to all comers who may desire a divorce or its equivalent; or to disregard the general rule that “ the courts of this State have no power to adjudge the status of parties residing beyond its jurisdiction.” (Gray v. Gray, 143 N. Y. 354, 357.) Until the Legislature acts, as it has now in respect to annulment actions, we think any other intention should not be presumed. Other provisions of the statutes confirm this. Until the aforesaid act of 1922, section 6 of the Domestic Relations Law (as amd. by Laws of 1915, chap. 266), in respect to void marriages, provided: “ A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living, unless either: * * * 3. Such former husband or wife has absented himself or herself for five successive years then last past without being known to such person to be living during that time.” This subdivision 3 was repealed and in place thereof was substituted by the act of 1922 the following:
The complaint is sufficient.
The motion, under rule 103 of the Rules of Civil Practice, to strike out the 11th paragraph of the complaint should be denied. This is the fourth amended complaint. Though in the former complaint, no motion to strike the 11th paragraph out was made, the allegations may have bearing upon the matters to be litigated; whether they should be stricken out is largely a matter of discretion. The action was begun in May, 1926. We think it should proceed to trial.
The order should be affirmed.
Hinman, Davis, Whitmyer and Hasbrottck, JJ., concur.
Order affirmed, with ten dollars costs and disbursements, and the defendants are given twenty days after service of a copy of the decision herein within which to answer.
This opinion was handed down March 2, 1923. A new section, 1146-a, was added to the Civil Practice Act by chapter 372 of the Laws of 1923, which took effect May 21, 1923, providing: “Conditions attached to maintenance of action to annul a marriage.” Subdivision 3 of this new section was amended by chapter 156 of the Laws of 1924.— [Note by the Court.