57 Ill. App. 475 | Ill. App. Ct. | 1895
delivered the opinion op the Court.
If the matters and things set up in the cross-bill of appellant constituted a defense to the suit against her, occurring as they did after the filing of her answer, they were properly brought before the court by such bill. Ferris v. McClune, 36 Ill. 77; Jenkins v. International Bank, 111 Ill. 462; Story’s Eq. Pleadings, Sec. 393; Daniell’s Ch. Pr., Vol. 1, pp. 606-7, 5th Ed.
The Constitution of the United States, Sec. 1, Art. 4, commands that, “ full faith and effect shall be given, in each State, to the public acts, records and judicial proceedings of every other State.”
In so far, therefore, as the Circuit Court of Lincoln County, in the State of South Dakota, has jurisdiction to proceed and adjudicate as it did, full faith and credit must be given to its judgment.
Two things are necessary to the validity of the judgment of a court:
First. It must have jurisdiction over the general subject-matter concerning which it adjudicates.
A justice of the peace can not grant a divorce because he has no jurisdiction in the matter of divorces.
Second. The court must have jurisdiction over the particular thing or person concerning which or whom it passes judgment.
The Circuit Court of Lincoln County, South Dakota, could not, by a proceeding in rem, disturb the title to the Sherman House in Chicago; nor could it render a judgment in per sonam conclusive against a citizen of Illinois, over whom it had acquired no jurisdiction other than such as it obtained by the publication of a notice to him to appear; and this, although the laws of South Dakota provided that personal serxdce might be so had, and personal judgment rendered against a party summoned only by notice inserted in a Dakota nexvspaper. Cooley’s Constitutional Limitations, 498
As to interests in mere things lying within its territorial jurisdiction, a court of superior and general jurisdiction may conclude all persons, present and absent, although notice is given only by publication, and personal service is had upon no one. Cooley’s Constitutional Limitations, 496.
Marriage has been said to be a status, and consequently divorce, but a decree as to a status, is a proceeding in rem. Thurston v. Thurston, 59 N. W. Rep. 1017; Gould v. Crow, 57 Mo. 200; Black on Judgments, Sec. 803; Brown on Jurisdiction, Sec. 76; see also, Bishop on Marriage and Divorce, Vol. 2, Secs. 132-142 and 147.
The marriage state is a condition; a status; so, also, is minority, citizenship, freedom, bondage. These are each conditions of the individual, depending for their existence upon the laxvs of the territory-in which the individual is domiciled.
Anterior to 1860, the man who was in America a slave, xvhen he entered the sovereignty of England became, there, a free man. A person might be a minor in South Dakota, yet of full age in Illinois. In England a woman is a minor until she is twenty-one years of age, xvhile in Illinois, she attains her majority at eighteen.
Each sovereignty determines for itself what the condition —status—of individuals, shall be, so long as they are domiciled within the jurisdiction of its laws. Strader v. Graham, 10 How. (U. S.) 82, 93; Cheever v. Wilson, 9 Wal. 108.
The condition of marriage is sui generis; although a civil contract, it is not like other contracts, dissoluble at the will of the parties.
In Illinois, marriage is a partnership in which there can be but two members. In Turkey a man may have at one and the same time four wives; his married status would there be that of the husband of four women, but if with one or all he came here, his status, Avhile here, would be nothing of the kind.
If he died in Illinois our law would not recognize the right of four women to dower in his real property, here situated, nor the claim of four Avidows to administer upon his estate.
The status of an individual as to marriage, as well as freedom, may be very different in the various sovereignties in Avliich he travels or dwells. Strader v. Graham, 10 How. (U. S.) 82-93.
There is, therefore, nothing anomalous, except as the Iuavs respecting marriage and divorce are anomalous, in appellant being, Avhen in Dakota, regarded and treated by the Iuavs thereof as a single woman, free to marry Mr. Allyn, and at the same time being, while in Illinois, regarded by our law as the wife of appellee; for marriage is a state AAdiich people not alone, can enter into only in accordance AArith the lex loci contractu/ but whether, in a new sovereignty to Avliich they may go, they avíII be recognized as husband and Avife, depends upon the law—the public policy—of such sovereignty. Vol. 1, Bishop on Marriage and Divorce, Sec. 140, 141, 142, note 3.
Had Brigham Young, when under the laws of Utah, united in Avedlock to his seventeenth wife, brought his new bride here, neither the public opinion, law, nor policy of this State would have recognized them as “ one flesh.”
So, too, Avhen a dissatisfied husband or wife, flying to the uttermost part of the earth or the republic, procures there, upon service by publication only, a divorce from a conjugal partner never within a thousand miles of the sovereign State under whose authority the decree was granted, whether in the State where the “ defendant ” has always dwelt the divorcee thus made will be regarded as a single and marriageable person, will depend upon its law and public polity.
It is undoubtedly true, as Bishop, in his work on Marriage and Divorce, Yol. 2, Sec. 156, observes, that neither of the dissevered blades of what was a pair of scissors is a “ scissor.” But a pair of scissors is not a thing which can be in two places at the same time, the manufacture and dissolution of which is regulated by law; whereas, marriage, in its legal aspect, in which alone we are called upon to consider it, is a ‘creation of the law, entered into and dissolved only as permitted by the law, whose courts ofttimes refuse to sever the relation, even at the prayer of each of the bounden parties.
If a proceeding for divorce is an action in rem, only, it is a little difficult to perceive how the court of a sovereignty, within whose domain one of the married has never been or appeared, is to deal with the entire rem.
The condition of marriage is a status, and therefore a thing; but the condition appertains to two, and exists in a status, wherever each is. Proceedings vn rem dispose only of the rem within the jurisdiction of the court. A suit for divorce is like marriage, sui generis; ■ it is to effect a status, and also personal rights and obligations.
A court of equity acts in personam. Penn v. Lord Baltimore, 1 Ves. Sen. 447.
In all suits in equity the primary decree is in personam and not in rem. Wadhams v. Gray, 73 Ill. 415-429.
The Constitution of the United States, requiring that full faith and credit shall be given to the public acts, records and judicial proceedings of every other State, does not command that Illinois shall, within its territory, enforce the laws of South Dakota. The same constitution gives to each State the power to determine the merely legal status of those who come within its border, so long as they remain there. The relation of mother and child exists from a law of nature; the relation of guardian and ward, heir and devisee, husband and wife, is determined by human law.
Had Utah, with her system of polygamy, been admitted as one of the States of the Union, and each of the seventeen wives of Brigham Young had there, by judicial proceedings or solemn act of the legislature, been pronounced each to be his lawful wife, if all came here, the courts of this State would not be bound under the constitution to here recognize the seventeen women as lawful wives of one man; while if the question here arose as to what was the condition of those eighteen persons while dwelling in Utah, the judgment would be a husband with seventeen wives.
What is here said is as to the obligation of one State to recognize the relation of husband and wife, persons divorced and marriageable, as determined in another State by proceedings in accordance with its laws. A few of the many-authorities in support of what has been said are: Jones v. Jones, 108 N. Y. 415; Doughty v. Doughty, 28 N. J. Equity, 585; Flower v. Flower, 7 Atl. Rep. 669; Harris v. Harris, 20 S. E. Rep. 137; Pennoyer v. Neff, 95 U. S. 714; Simonds v. Allen, 33 Ill. App. 514; Jackson v. Jackson, 1 Johnson 424; Kerr v. Kerr, 41 N. Y. 272.
What the policy of, and rule in Illinois is, as to divorces obtained upon service by publication in other States, is another matter.
There is much force in what is said, that as the service upon appellee, in the proceeding had in Dakota, was such as the law of this State prescribes may be made and shall be sufficient to authorize in our courts the granting of divorces, it must here be recognized as sufficient. The question hére in this suit presented is not so much as to the character of the service upon appellee as it is as to the alleged fraudulent character of the proceeding in South Dakota.
It is a rule of law that fraud vitiates all acts.
Whenever a court of equity is asked to carry a decree into execution, it has full power to look into the case and see whether the decree is equitable and just, and if it is not, it will refuse to enforce it. Story’s Eq. Pleadings, Sec. 43, note a, and Sec. 641; Wadhams v. Gay, 73 Ill. 415-431; Hamilton v. Houghton, 2 Bligh, 169.
In the present case, while appellant’s cross-bill is introduced as a defense, yet by it she sought, not merely to interpose the decree she had obtained as a bar to the rendering to appellee of any decree for divorce, but also “ as and for a complete bar to the further maintenance of this suit by said complainant.” How, this suit is not merely for a divorce; it is also for the cancellation of the deed of conveyance of certain real estate to appellee, for the re-transfer to appellee of certain life insurance policies, and other matters, not mentioned in the decree or proceedings had in South Dakota.
In proceedings for divorce the public is an interested party; the proceeding must be such, and for such cause, as the law approves; it is not enough that the husband and wife desire to be divorced. Bishop on Marriage and Divorce, Sec. 229 b; 16 Maine, 481; Whittington v. Whittington, 2 Dev. & Bat. (N. C.) 54, 76.
In the proceeding in South Dakota it was necessary, in order that no fraud should be committed upon the public, that appellant should have been in good faith a bona fide resident of the State for at least six months next preceding the commencement of her action.
The record of the proceedings in which her decree was obtained failed to show that at-any time the court was informed that March 25, 1893, in Coble county, in the State of Illinois, in the city which had been the only home of appellant and appellee during their married life, a bill for divorce from her was filed by the afterward defendant, to the proceeding by her brought in South Dakota; that on April 25, 1893, personal service of summons in said suit was had upon appellant in said Cook county; that on May 3,1893, she filed her answer in said cause, and that said cause ivas pending and undetermined, when, on July 8, 1893, she filed, in South Dakota, her bill, and on the 21st day of September, 1893, obtained her decree. Nor does it appear that the court in which she obtained her decree was informed that when a resident of Chicago, she had, in October or November, 1892, commenced a correspondence with lawyers in South Dakota as to the grounds upon which she could there obtain a divorce, and that she had induced the co-respondent to so write, or that the court was informed as to other matters tending to show that she went to South Dakota solely for the purpose of there obtaining a divorce. What the Circuit Court of Lincoln County, South Dakota, would have done had it been informed as to these things, can not be known; that the proceeding in South Dakota was a fraud upon the public, there can be no doubt; that it was there instituted for the purpose of evading a trial in the forum in which she had appeared and answered, and for the purpose of ousting the Circuit Court of Cook County of its jurisdiction to hear and determine the matters which by the pleadings of appellant and appellee had been committed to it, plainly appears. Such conduct is not to be encouraged. Hutchings v. Hutchings, 41 Ill. App. 82; Albee v. Albee, 43 Ill. App. 370; Mail v. Maxwell, 107 Ill. 554-561.
For fraud in making jurisdiction to appear, a divorce will be set aside. Caswell v. Caswell, 120 Ill. 377; Edson v. Edson, 120 Mass. 590; Bishop on Marriage and Divorce, Vol. 2, Sec. 144; Scanlan v. Scanlan, 41 Ill. App. 449.
Whether the court below ought to have sustained the demurrer to the bill of appellant is now of little consequence; she had, upon the hearing, the full benefit of her answer and of such bill.
As- to the main issue of fact involved in the case we see no sufficient reason for reversing the conclusion of the chancellor.
It is suggested that the decree in this case fastens an unjust stain upon appellee. It is not likely that many of the public, or the friends of either of the parties, will, in their judgment of the conduct of appellant or appellee, be controlled by the decree in this cause rendered. Appellant has, without resistance, succeeded in having placed upon record in the Circuit Court of Lincoln County, in the State of South Dakota, a decree finding appellee guilty, not only of adultery, but of many other most heinous offenses. All the allegations of her petition are there found to be true.
The decree in this cause does not remove that stain, if such it be, nor would a reversal of the decree of the court below restore to appellant the good name and fair fame she once enjoyed. Each person can establish his own character. Reputation is ofttimes beyond the control of either courts or self.
Appellant desired to be divorced from appellee, free to marry whom she would; by the decree of two courts in two. States she has been so divorced. The decree of the court below deals with matters of property, and it is in respect to these that it can be said to, in any considerable degree, affect unfavorably appellant’s rights.
We think it such as the court should have made, and it is affirmed.
