19 Ala. 499 | Ala. | 1851
This was an application to the Court of Probate of Dallas, by Harriet Harrison, claiming to be the widow of Kirkland Harrison, deceased, and praying that dower might be allotted to her of the lands of the decedent. The application was dismissed, and the cause is brought before this court by writ of error.
In'the year 1839, Kirkland Harrison filed his bill ill the Chancery -Court of Dallas county against the plaintiff in error, in ■which she was styled Harriet Y. Harrison, formerly Ellison, alleging that she had voluntarily left his bed and board for the space of three years, with the intention of abandonment, and praying a divorce from the bonds of matrimony-. This bill, however, took no notice of the decree that had been tenderéd in the State of South Carolina, -and the plaintiff was made a party to it by publication only, without personal service, and it is stated in the affidavit of Harrison/filed to obtain the order of publication, that the plaintiff then resided in the State of South Carolina, and without the limits of this State. Upon proof of the marriage and that the parties removed to this State in the early .part of the year 1834, and that the plaintiff in error left her ■husband in a few months thereafter and returned to South Carolina, ryhere she had ever since remained, the chancellor de>creed a divorce according to the prayer of the bill. This decree was rendered in July, 1841, and in pursuance thereof an •act was passed by the Legislature of the State of Alabama) on
This being the law of that State, it is contended, first, that a marriage celebrated there cannot be dissolved in another State,, although the parties have removed to, and become citizens of such other State, in which divorces a vinculo are allowed. I cannot, doubt but that the law of the placo of the actual domicil of the parties is to govern in questions of divorce, without regard to the law of the place where the marriage was celebrated; and if. the laws of the place of the domicil allow of divorces for any cause, the injured party may obtain one, although the law where the contract of marriage was consummated would not allow it for any cause. This is said to he the settled doctrine of the American courts, by Judge Story, in his work upon the Conflict of Laws, § 280, and the decisions (to which ho has referred, and which have fallen under my observation, fully sustain his assertion.
In the case of Barber v. Root, 10 Mass. 265, the parties were married in Massachusetts, but afterwards removed and fixed their domicil in Vermont, and in the latter State the wife obtained a divorce a vinculo by a decree of the Supreme Court, The validity of this decree came in question before the Supreme Court of Massachusetts, and it was determined to be valid, notwithstanding the cause for which the divorce was granted in Vermont would not have been sufficient to authorize the divorce by the laws of Massachusetts; and in the opinion the principle was asserted,that the conduct and relative duties of the married parties, as well as the relation itself, must bo governed by the law of the domicil of the parties, and not by the law of the place where the marriage was contracted; and even in annulling the .relation, reference must be had to the law of the domicil, -and not to the law of the place of the contract. In the case of Harteau v.
But I cannot give my assent to the case of Lolly and those founded upon it. It is trpe we must look to the lex loci contrac-tus to determine upon fho validity of the marriage, and fllso to ascertain the rights eaph party acquired in the goods or pro? perty of the other, possessed at the time of the miirppge, or acquired during the time of their domicil there. But when they remove and acquire a new domicil and become citizens of another country, although they carry their rights with them, they do not, and canppt parry with them the lex loci contractus. They come
But the-decree,is .assailed on several other grounds. It is urged that it .is void because the plaintiff.in error was not served with process personally, and also because it .was not affirmed by tho Legislature at the next session after it was rendered, and further, that it-was fraudulently obtained.
Independent of our statute, it uncertain that the decree would be void, because the .plaintiff in error, who was the defendant t© the bill, was not personally served -with process, nor did she appear or submit to the jurisdiction of the .court. But in this State, as in many others of ..the Union, if not in all, the Legislature has passed laws to enable, a complainant to proceed against an absent or non-resident defendant, on whom personal service cannot be effected, by publication, when .the cause of complaint originates in this State, (see .Clay’s Dig. 353-4, § 48,) and decrees rendered upon service .by publication, in the manner prescribed by the act, unless controverted in the manner pointed,out thereby, and set .aside, .are equally as binding and obligatory
Neither is the decree ineffectual because the Legislature of the State did not pass a law confirmatory thereof, at the next General Assembly of the State held after the same was rendered. It is made the-duty of the party in whose favor a decree is rendered, to deliver to the Speaker of the House of Representatives, either by himself, his agent or attorney, a transcript of the proceedings and decree, in the manner directed by the act of 1820, (Clay’s Digest, 171,) and the Speaker is to cause the record to be opened in -the presence of the House, and the same to be read and proceeded upon according to the constitution of this State. But neither the constitution nor our acts passed in pursuance thereof prescribe the time within which the Legislature must act upon the decree to give it validity, and we cannot restrain or limit them to the session next after the decree is rendered, or hold the law void which they may pass confirmatory of the decree, because it was passed at a subsequent session.
The last objection is, that the decree was fraudulently obtained — first, because the bill describes the plaintiff in error by the name of Harriet Y, Harrison, when her name was Harriet, with
It must bo observed that no evidence was introduced to show the intention of the complainant in alleging the name of his wife to be Harriet Y. Harrison instead of .Harriet Harrison, nor that the plaintiff'in error was misled or injured by the insertion of the letter Y as part of her name. But the question arises solely on the fact, and the plaintiff seeks to avoid the effect of the de- • cree, simply on the ground that she was christened by the name Harriet, without the addition of a middle name, and the bill was filed against her by the name of Harriet Y. We cannot- say from this circumstance alone that the decree was fraudulent. The bill filed by Kirkland Harrison sufficiently described-his ■wife to enable her at once to know against whom it was filed.. She is described as Harriet Y. Harrison, formerly Ellison,..and the place of their marriage is correctly given by the bill. If the plaintiff saw the publication made against her, she at once knew against whom it was filed. This at once would: do away with the idea of intentional fraud, for if the letter Y had been insert- • ed to mislead the plaintiff and to prevent her from contesting the bill and the decree that was rendered,, the complainant would scarcely have given such a description, of her as would, beyond doubt, have defeated the very purpose he had in view. But besides this, it is not even alleged in the pleadings that the plaintiff was not called or known, by the name of Harriet Y. Ham-son. It is not unfrequently the case that a middle name is given or assumed after the first is given, or that one becomes as well and as familiarly known by a name differing from his baptismal name, as he is by his true name. Whether the plaintiff in error may not, in the one or the other of these modes, have acquired the addition of the letter Y to her name is not negatived, either by proof or by the pleadings- The decree cannot be affected with fraud on this ground.
The only remaining ground- on which the decree is assailed for fraud,, is the omission to state in the bill the proceedings and decree rendered in South Carolina,, by which the plaintiff in error was authorized and protected in- living separate and apart from her husband, Kirkland Harrison- We must bear in mind
Coming to the conclusion that the decree rendered in this State divorcing Kirkland Harrison .from, .his wife, cannot be impeached for any of the reasons alleged in ¡the pleadings, it becomes unnecessary to examine the important question, whether the decree rendered in South Carolina in favor of the plaintiff in error was •
There is no error in the record, and the judgment of the court .below must bo affirmed.