273 F. 61 | 1st Cir. | 1921
This is an appeal from a final judgment of the Supreme Court of Porto Rico, affirming a judgment of the district court for the judicial district of Ponce. The action arose upon a complaint filed by the appellee in which she represented that she is the acknowledged natural child of Rafael Marrero, bom in Ponce, Porto Rico, on September 16, 1901, as the offspring of illicit carnal
Service by publication and by notice through the mail was ordered upon Ester Bessie Boerman in accordance with sections 94 and 95 of the Code of Civil Procedure of Porto Rico. Notice was published as ordered, but the notice sent to her address in Russia never reached her and she was defaulted.
The other defendant, Maria D. Fordham, filed an answer, which contained a general denial of all the allegations in the bill of complaint, and also alleged that Charles M. Boerman married in the city of Chicago, 111., on November 15, 1893, one Sophia Boerman; that she obtained a decree of divorce from Charles M. Boerman in the Supreme Court of the state of New York on May 25, 1900, on the ground of adultery; that in the decree granting the divorce there was a provision that it should not he lawful for the said Charles Mi. Boerman “to marry again until the said Sophia Boerman, the plaintiff, shall be actually dead”; that when the said decree of divorce was granted, and until 1903, Charles M. Boerman was a citizen of the state of New York, although domiciled in Porto Rico, and that according to the
The trial was held in the district court for the judicial district of Ponce before Hon. Domingo Sepulveda, District Judge. Before commencing the trial on November 2, 1917, Judge Sepulveda announced that the term of four years for which he had been appointed expired on November 1, 1917; that he had been reappointed by the Governor as judge of the district court of Ponce, and his appointment had been transmitted to the Senate; but he had yet no knowledge that his appointment had been confirmed. The attorneys upon both sides stated that they made no objection to Judge Sepulveda’s hearing the case and he proceeded with the trial. He ruled that the prohibition in the decree of divorce that Charles M. Boerman should not marry during the lifetime of Sophia Boerman, his former wife, had no extraterritorial effect and did not constitute a bar to his marriage in Porto Rico at the time of the birth of the appellee. He found as a fact that Charles M. Boerman resided in Porto Rico from the year 1899 until he died in 1914, and that under the law and the facts Amelia Marrero is his acknowledged natural child, with the right to bear his surname and inherit from him the part of the estate which the law allows her as such.
Upon the judgment entered upon his findings of fact and rulings of law there was an appeal to the Supreme Court of Porto Rico, which, in a very careful opinion by the Chief Justice, affirmed the judgment of the court below, after examination of all the testimony and the written and oral pleadings of all the parties.
There are 22 assignments of error, but only 5 are now relied upon by the appellant:
First. That the Supreme Court of Porto Rico erred in finding and holding that the evidence presented was sufficient to establish the status of the plaintiff, Amelia Marrero, as an acknowledged natural child of Charles M. Boerman.
Fifth. The Supreme Court of .Porto Rico erred in finding and holding that Charles M. Boerman was capable of having a natural child at the time of the conception and birth of the plaintiff, Amelia Marrero.
Fifteenth. The Supreme Court of Porto Rico erred in not finding and holding that the district court for the judicial district of Ponce had no jurisdiction to try and render judgment in this case, inasmuch
vSixteenth. The Supreme Court of Porto Rico erred in not finding and holding that Charles M. Boerman’s sisters, to wit, Rachel Krasnetsky, Glikka Kessler, Rebecca Kagan, Sara Beilinson, and Anna Gay-man, were necessary parties to this suit.
Twenty-second. The Supreme Court of Porto Rico erred in finding and holding that Judge Sepulveda was legally qualified to try and decide the issues in and render judgment therein as judge of the district court for the judicial district of Ponce.
She claimed that her husband did not carry out his purpose of adoption, because he was informed that if the appellee were adopted she would have the same rights as if she were his own daughter, and that he did not desire this. i
We have carefully examined the transcript of testimony and concur in the finding of the Supreme Court that—
“It presents strong and convincing proof in support of the conclusion that plaintiff, Amelia Marrero, has been in the continued possession of the status of natural daughter of Charles M. Boerman by reason of the direct acts of the said Boerman with regard to the plaintiff, as required by section 135 of the Spanish Civil Code, cited by the appellate as applicable to the case because it was in force at the time of the birth of said plaintiff.”
At the time of the birth of the appellee the Civil Code of Spain relating to the acknowledgment of children born out of wedlock was in force in Porto Rico (Mendez v. Martinez, 21 P. R. R. 238), and this provided as follows:
“Art. 135. The father is obliged to acknowledge the natural child in the following cases:
“1. When an indisputable paper written by him, expressly acknowledging his paternity, is in existence.
“2. When the child is in the uninterrupted enjoyment of the status of a natural child of the defendant father, justified by direct acts of the said father or of his family.”
_ We do not think that it is, but, on the other hand, that the evidence is plenary; that in many ways Charles M. Boerman publicly treated the appellee as his daughter, manifesting a deep interest in her education, and being willing that she should bear his surname. This disposes of the first assignment of error.
The fifth assignment of error, relied upon, is that the court erred in not ruling that the appellee could not be the natural child of Charles M. Boerman, for the reason that article 119 of the Civil Code, in force in Porto Rico in 1901, provides as follows:
“Art. 119. Only natural children can be legitimized. Natural children are those born out of wedlock of parents who, at the time.of the conception of the child, could have married with or without dispensation.”
We find no error in the ruling of the Supreme Court of Porto Rico that the prohibition in the decree of divorce granted by the Supreme Court of New York had no extraterritorial force, and that, because of this general order, there was no bar to the marriage of Boerman with the mother of the appellee at the time of the conception and birth, and therefore no legal reason why she could not be the natural child of Boerman and legitimatized by him.
Upon questions involving the status of its citizens every state is sovereign. Porto Rico has, with the sanction of the United States, enacted laws in regard to the acknowledgment of illegitimate children, and in the execution of these laws it exercises the powers of a sovereign state, and a judgment rendered by its courts in their execution can only incidentally affect nonresidents. Such a judgment, if not strictly a judgment in rem, is one quasi in rem, as is a decree of divorce, which only dissolves a marriage, and does not contain any provision for the payment of alimony. As there is no suggestion that the order of notice upon the absent defendant, Ester Bessie Boerman, was not strictly- complied with, we think the district court of Porto Rico had jurisdiction to enter her default.
The judgment of the Supreme Court of Porto Rico is affirmed, with costs to the appellee in this court.