122 N.Y.S. 941 | N.Y. App. Div. | 1910
The defendant, in November, 1900, married William Guggenheim, from whom,, in March, 1901, she obtained a divorce in an action brought' for that purpose in the State of Illinois, he personally appearing therein. The judgment also awarded her alimony in lieu of which, shortly after the judgment was rendered, Guggenlieirn paid to her $150,000. In December, 1901, she married, one Wahl, in the city of New York, representing at that time that she was single and a resident of Chicago. This marriage-was subsequently declared illegal and void by the courts of France for reasons which it is unnecessary to specify here. After the defendant had obtained the divorce in Illinois and been paid the sum stated in lieu of the alimony awarded by the - judgment, William Guggenheim married- the plaintiff in'this action and they have one child. After the defendant’s marriage to Wahl had been delared illégal and void she began an action in the Supreme Court of this State against Guggenheim for divorce, alleging that he had committed adultery with the present plaintiff. The action, was tried upon the merits, the complaint dismissed, and judgment to that effect was affirmed by this court (Guggenheim v. Guggenheim, 135 App. Div. 914). In' the meantime the defendant had applied to the Circuit Court of Cook county, Ill., for leave to file a petition, in the action in which she had obtained a divorce against Guggenheim to have such judgment vacated. Her application was denied, and after this court had affirmed the judgment in the action brought by her against Guggenheim in this State she comnienced an action in the Circuit Court of Cook county, 111., in the nature of a, bill, of review, to set aside the judgment of divorce. Thereupon the- plaintiff brought this action to perpetually enjoin the defendant from proceeding in the Illinois action or from questioning,, by action or otherwise, in any court, the validity of the Illinois judgment, and she obtained an order practically awarding, her such relief during the pendency of the action, from which defendant appeals.
The plaintiff was not a party to the action brought iri Illinois, which resulted in the judgment of divor.ee, nor am I able to see
If defendant is entitled to have the judgment vacated or set aside, under our laws she is obliged to go into the State1 in which, the judgment was rendered. This she has done, and the courts of that State have jurisdiction of the subject-matter of the action which she has brought. “ The doctrine,” says Chief Justice Fuller in Matter of Chetwood (165 U. S. 443), “ is firmly established that where the jurisdiction of a court, and the right of a plaintiff to prosecute his suit in it, have once attachéd, that right cannot be arrested or taken away by proceedings in another court.” (See, also, Peck v. Jenness, 48 U. S. [7 How.] 612.)
If the parties to this action were the same as the parties to the action now pending in the courts of Illinois, a different question would be presented and the authorities cited by the respondent, or some of them, might be applicable. But whether, in that case, an injunction would be granted during the pendency of the action is a question not before us and concerning which we express no opinion.
If the foregoing views be correct, then it follows that the order
Ingraham, P. J., Clarke and Scott, JJ., concurred; Dowling, J,, dissented:
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.