20 Ala. 629 | Ala. | 1852
~We bave listened witb mucb attention to tbe able arguments of tbe respective counsel engaged in tbis cause, and have carefully examined tbe several positions and numerous authorities submitted by them, and having given to tbe case the consideration which tbe novelty and importance of several of tbe questions involved in it demand, it is made my duty to announce, as briefly as I may, tbe conclusions attained by tbe court.
No principle of law appears to be more generally recognized, or better established by judicial decisions, than that tbe domicil of tbe husband determines that of tbe wife. Mr. Phillimore, in bis work on Domicil, (p. 27,) says: “The maxim of tbe Roman and continental civilians, as also of tbis country and America, is, that as tbe wife takes the rank, so she does tbe domicil of her husband.”
Judge Story, in bis work on tbe Conflict of Laws, § 46, says: “A married woman follows tbe domicil of her husband. Tbis results from tbe general principle, that a person who is under tbe power and authority of another, possesses no right to choose a domicil.”
In legal contemplation, husband and wife constitute one body, and cannot be domiciled in different States, so long as tbe relation upon which their legal identity depends, remains unimpaired. Dougherty v. Snider’s Ex’r. 15 S. & R. 84, 90.
In Donnegal v. Donnegal, 1 Ad. Ecc. Rep. 19, it was said that a party may have two domicils, the one actual, the other legal, but that the husband’s actual and the wife’s legal domi-cil are one, wheresoever she may be personally resident. See also Shackell v. Shackell, and Warrender v. Warrender, cited by Mr. Phillimore on Domicil, p. 31.
Having shown that, at the time of the exhibition of the bill by Mrs. Harrison, both she and her husband were legally domiciled in this State, it remains to consider whether, conceding this fact, the jurisdiction of the court as respects the subject-matter of the bill attached, and what effect the actual non-residence of Kirkland Harrison had upon its power to proceed.
Now, it is most unquestionably true, that no independent State could for a moment tolerate any interference on the part of a foreign tribunal with this, the most sacred and important of all the domestic relations which obtain among its citizens. It is a relation, the intermeddling with which involves consequences most usually reaching far beyond the immediate parties to it, as it lies at the very basis of civilized society, and becomes so interwoven with its very framework, as to
In the case of Hanover v. Turner, 14 Mass. Rep. 227, which was an action of assumpsit against the husband for necessaries furnished the wife, who had, by his cruel treatment, been forced to abandon him, the husband pleaded that he had obtained a divorce from his wife anterior to the furnishing of the supplies to her; but it appeared he had gone to Vermont, and resided temporarily in that State for the purpose of obtaining a divorce, the wife never having been within that jurisdiction, and that the alleged ground of divorce took place in Massachusetts, the State of their permanent domicil. The court held the divorce granted by the Vermont court utterly void, and said : “If we were to give effect to this decree, we should permit another State to govern our citizens, in direct contravention of our own laws, and this can be required by no rule of comity.” Such is undoubtedly the correct rule of law, and we recognize it to the fullest extent; but upon a calm and careful review of the facts of this case, we feel constrained to hold that they do not bring it within the influence of this principle.
While resident there, a separation took place, by reason of
It is very clear that, according to the facts of the case presented by the record of the wife’s recovery in the Chancery Court of Fairfield District, she had a right, before her removal to this State, to relief against her husband, according to the law as administered in the Chancery Courts of South Carolina. That relief would not extend to annulling the marriage, for it appears that divorces are never granted in that State; but it extends to the protection of the wife, and a provision for herself and infant child, by way of maintenance or alimony, to continue until the husband is willing to take his wife back and treat her with conjugal affection. The marriage remains of force notwithstanding the decree, and the husband is shorn of his power to inflict further injury upon his wife, whom, by his bad conduct and ill treatment, he has driven from his house. Although her legal domicil was in Alabama, yet she 'was actually resident in South Carolina, and as sucb, entitled Jo the protection afforded by the laws of that State. Had her husband gone there and attempted violence upon her, or by force to take her out of that jurisdiction, so as to continue his cruel treatment towards her, we entertain no doubt as to
The transfer of their domicil to this State does not destroy the wife’s right to proceed in South Carolina, for a ground of complaint complete in that State before their removal, provided the parties can be subjected to that jurisdiction by being personally served with the process of the court.
In Dorsey v. Dorsey, cited by Mr. Justice Story in his Conflict of Laws, § 230 a, Mr. O. J. G-ibson, after stating that the transfer of allegiance and domicil is a contingency which enters into the views of the parties when they contract marriage, and of which the wife consents to bear the risk, proceeds to say, that “ by sanctioning this transfer beforehand, we consent to part with the municipal governance incident to it; but with this limitation, ive part not with the remedy of past transgression.”
It follows, therefore, that unless there was a want of jurisdiction as to the person of the defendant, the South Carolina decree is valid, since it does not annul or attempt to impair the relation of marriage, but only affords a remedy for the violation of obligations, and seeks to enforce duties growing-out of that relation.
Upon the subject of the jurisdiction as affected by the non-residence of Kirkland Harrison, a few words may suffice. Conceding that he might have availed himself of his residence in this State to have defeated a recovery, we think it clear that his failure to raise the objection must be regarded.as a waiver óf it. The rule appears to be well established, that
These considerations lead us to tbe conclusion, that tbe decree sued on is not void for want of jurisdiction.
We shall not stop to inquire whether this divorce was regularly obtained, and was binding upon these parties. That identical question was before us at a previous term of this court, and after a full examination, we determined that tbe decree was not void. Tbe subsequent argument of tbe point, and tbe additional grounds taken, have failed to shake our opinion in tbe correctness of that decision.
But although that decree was predicated upon tbe ground of tbe wife’s abandonment of her husband, we think it by no means follows that it estops tbe wife, from recovering tbe amount decreed before its rendition as a provision for her support. No case bas been cited, and we have been unable to find one, which bolds, that a subsequent decree of divorce bas tbe effect to vacate and avoid, in this indirect manner, a moneyed decree previously rendered, as to tbe amount due upon it anterior to tbe divorce. To bold that tbe decree of divorce should have tbe effect of vacating tbe previous decree for tbe alimony due anterior to its rendition, would be to al
We are of opinion tbat both decrees may stand, so far as in their results they are not incompatible with each other. The subject-matter and object of each are wholly different. The first seeks to enforce the obligations and duties springing out of the relation of marriage; the second, entirely to annul that relation, and having effected the contemplated object, puts a period to the operation of the first, which is necessarily dependent upon that relation. True, the South Carolina court, not recognizing the doctrine of divorce, did not fix upon that as a period terminating the provision made by its decree for the wife; but when she seeks her remedy in this State, where divorces are granted, she submits to the law of the forum governing that remedy; and as by this law an end has been put; to the relation of marriage, as effectually as would have resulted from the death of either of the parties, as a consequence, all duties and obligations necessarily dependent upon the continuance of that relation, immediately cease.
After the best reflection we have been enabled to bestow upon this case, we come to the conclusion, that the plaintiff below is entitled, according to the decree which is the foundation of her action, to recover one-third of the nett annual income of her late husband, estimated to have been annually, $8,500, from the 18th day of April, 1837, down to the time of the divorce, which was the 15th January, 1844, embracing a period of seven years, less three months and three days.
The judgment of the Circuit Court, which is based upon an extension of the period to the death of the husband, is clearly erroneous, and must be reversed; and judgment must here be rendered for the correct amount, which is computed as follows; One-third annual income from 18th April, 1837, to 15th January, 1844, say six years and nine months, less three days, is $19,101 TV<r; from this sum must be deducted the sum of $730, the proceeds of the sale of the slaves, and also the sum of $7, 124, the moneys collected by the Commissioner from Messrs. Harrison and Whitaker, and paid to the complainant i,n South Carolina, leaving the amount for which judgment must be here entered $11,247
6 and 7. It is settled, that in the absence of evidence as to
Let the judgment be reversed, and accordingly rendered, -to be levied of the goods and chattels of the intestate in the hands of the plaintiffs in error unadministered, and let the plaintiffs in error recover their cost.