46 N.Y.S. 177 | N.Y. App. Div. | 1897
The intestate died November 9, 189.6. On the next day a petition was filed with the- surrogate of Kings county by Harriet A.. Kimball, his mother, alleging that the intestate was unmarried and left him surviving no widow. Whereupon, on the same day, letters
The application was opposed by the mother and sister of the intestate, on the ground that the petitioner was not the widow of the deceased. They admitted that a ceremony of marriage had taken place between her and the intestate, but alleged that the marriage was invalid because she had married on May 12,1885, one James L. Semon, at the city of Hew York, and that in September, 1890, she instituted an action for divorce in the District Court of the fifth judicial district of the State of Horth Dakota; that Semon was then and ever since a resident of this State ; that an order was made directing the service of the summons by publication; that a copy of the sanie was served on Semon at the city of Hew York, and that he did not appear, answer or demur in the action; that these facts were recited in the final decree of divorce of January 26, 1891; .that by reason of these facts the court did not acquire jurisdiction of Semon, and that the decree of divorce was absolutely null and void in this State, so that the appellant could not lawfully contract marriage with the intestate; and that her alleged marriage with the intestate was null and void.
If these allegations were assumed to be true, we should have no difficulty in deciding this controversy. It was said in Kamp v. Kamp (59 N. Y. 212, 215) that, “ the general rule is that a party cannot appeal from one judge to another of co-ordinate jurisdiction by motion for relief, from an order or judgment against him, but
In The People v. Baker (76 N. Y. 78, 82), the defendant was indicted for bigamy. It appeared that a decree of divorce had been obtained in an action in the Court of Common Pleas in Ohio, where the record showed that the process had been served on the defendant by publication, and that there was no personal appearance by him in the action. This decree was regular and sufficient-, and the judgment binding, under the laws of Ohio; Judge Folger, writing the opinion, said: “ As we look at this case, it, presents this question : Can a court in another State adjudge to be dissolved and at an end the matrimonial relation of a citizen of this State, domiciled and actually abiding here throughout the pendency of the judicial proceedings there, without a voluntary appearance by him therein, and with no actual notice to him thereof, and without personal service of process on him in that State.” This question the court decided in the negative and affirmed the conviction of the defend- _ ant for bigamy, so that the question is no longer an open one in this State.
The question, however, is complicated by subsequent proceedings and an amendment nune pro twnc of the decree of the North Dakota' court. A few weeks after the issuing of the letters of administration, Mr. Semon filed a petition in that court, alleging that after service upon him of the process within the State of New York, which required the answer within thirty days, he did, on October 23, 1890, prepare and verify what he calls an answer to the complaint, and served it by mail upon the plaintiff’s attorneys in that action; that he did this without advice of counsel and that it was his intention to inform the court of Ms position and defense, and to submit himself to the jurisdiction of the court, and that he
The court directed the filing of the defendant’s letter as of the date when it was received by the plaintiff’s attorneys, apparently, October 28, 1890, and ordered that the decree “ be amended nunc fro time as of the 26th day of January, 1891, by striking out therefrom the recitals setting forth ‘ that the defendant failed to answer, demur or make any appearance whatever, as by the summons and the law required in such case, but instead thereof made default; that upon such default,’ and by inserting in lieu thereof the following words: ‘ The defendant having appeared herein and answered and submitted himself to the jurisdiction of the court.’ ”
The question presented for our consideration is whether the status of the petitioner is determined by the amendment of the decree nunc fro tunc, and whether the decree thus amended can be attacked on the ground that the court was without jurisdiction. The practice of North Dakota is generally similar to our own. Section 5341 of the Code of Dakota, which was made part of the law of North Dakota when that State was admitted to the Union, provides that it shall not be necessary to entitle an affidavit in an action, but an affidavit without a title or with a defective title shall be as effectual for every purpose as if it were duly entitled, if it intelligently refer to the action or proceeding in which it is made. Such also is the similar provision of section 728 of our own Code of Civil Procedure. To the letter of Sernon was attached an affidavit, dated October 23, 1890, which although quite informal as a verification of a pleading, declared that the letter was “ absolutely true in every particular.” The District Court of North Dakota held that it constituted a'proper appearance and answer, ordered it to be filed .as such and amended the decree nunc fro tunc, as already stated. The Code of that State contains sections substantially similar to sections 723 and 724 of our own Code, providing for the amendment, before or after judgment, of all papers and proceedings in furtherance of justice.
A similar question to the one here involved was under consideration in Kerr v. Kerr (41 N. Y. 272). The surrogate of Kings county in August, 1867, granted to the plaintiff, Jane Kerr, claiming to be the widow of Richard Kerr, letters of administration .upon the estate of Richard. Subsequently the defendant, Jane F. Kerr, applied for a revocation of the letters on the ground that she, and not Jane, was the-widow. Jane answered that she bad-married Richard in February, 1867. It appeared that, in July, 1866, and before his marriage with Jane,.Richard had obtained a divorce from a former wife in an Indiana court, the. decree reciting the appearance of the wife in the action. The surrogate decided, and- the Court, of Appeals affirmed his decision, holding, that the judgment might be inquired-into, and the fact, shown that there was no su'Chappearance, and that the-Indiana court had not acquired jurisdiction, It will be-observed that this attack was made upon the decree by a stranger, and not by" a party to it, and was .permitted because property rights were affected by it.
. The surrogate in this proceeding has found, as a matter of fact, that the appellant and Semon were married-in ¡New York on May 12, 1885 ; that ever since that marriage he was a -resident of this State, and that the appellant commenced her action, for divorce in North Dakota, but that her husband was. not served with process in that action in said-State and did not appear therein. He finds, as a conclusion of law, that the .North Dakota , court did. not acquire jurisdiction of the husband, and- that when the appellant entered-into the marriage.ceremony with'the intestate she was' still the wife of Semon, and could not contract a lawful marriage with the-intestate, and, therefore, is not his widow.
It is not necessary for us to decide whether the rights of the intestate’s next of kin can be affected "by the; amendment of the decree made after his death.. It is sufficient forms to. say that we can.see
We see no reason to differ with his conclusion.
The decree should be affirmed.
•All concurred.
Decree of surrogate affirmed, with costs.