98 N.Y.S. 415 | N.Y. App. Div. | 1906
This is an appeal from an order of the Surrogate’s Court, of the county of Hew York denying the petition of Hester McGarren asking for the revocation of letters of administration theretofore granted to ■ Henry McGoughran on the estate of Alexander McGarren or McGoughran, and the appointment of said petitioner as administratrix of said estate. The petitioner alleges in the- petition 'that said Alexander McGarren departed this .life oh June 25, 1905, being at the time of his death a resident of the city and county of Hew York, and that she is the widow of the said Alexander McGarren that lie left him surviving only his widow and eight cousins; that he left a large .estate of personal property and two pieces of real property; that a petition, verified by the respondent Henry McGoughran, had been filed on June. 29, 1905, praying that letters of administration- be issued to him, and a decree of the Surro/gate’s Court,had been entered appointing the said respondent such ‘ administrator; that said petition did not refer to this petitioner at all; that such respondent was incompetent and disqualified to act..as such. administrator, and that petitioner had a prior right to be appointed administratrix of tlie estate; that neither she nor anybody representing fier had made any objection to the appointment "of the said Henry McGoughran as such administrator, for the reason that she had no notice whatever of the pendency of said application until' after the issuance of such letters of administration, and, no citation had been issued to her. Answering said petition the administrator alleged that the. petitioner was not the widow of the decedeh-t j that she had been married to the decedent on October 1, 1898, but
The question really involved here is the validity of the judgment annulling the marriage. If that is a good judgment, concededly the appellant has no right of administration. The validity of said judgment is attacked upon the ground that the court in which it was rendered did not acquire jurisdiction of the defendant, in that the summons therein was not served upon her. Incidentally the question is raised whether the surrogate has power to pass upon the question of jurisdiction, because, while in his order no such determination is' made, in his opinion on the motion the learned surrogate said: “Upon these facts the inquiry that her counsel asks me'to make is not as to whether any service of summons was made, but as to whether, upon the facts, what was done in the attempt to serve her amounted to a regular and sufficient compliance with the, requirements "of the law as to the service of a summons in the Supreme Court. This I decline to do upon the ground that I am without jurisdiction.”
Section 1154 of the Code of Civil Procedure provides that “A final judgment, annulling a marriage, rendered during the lifetime of both the parties, is conclusive evidence of the invalidity of the marriage in every court of record, or not of record, in any action or special proceeding, civil or criminal.” The judgment entered April, 1902, was rendered during the lifetime of the parties. The marriage upon which the petitioner relies to establish her claim is identified and conceded to be the marriage annulled by
In Ferguson v. Crawford, on the second appeal (86 N. Y. 609), Judge Batallo said: “ The judgment in the McFarquhar case was regular on its face and every intendment should be in favor of its validity; and although we have held that the defendant therein was at liberty to show, if he could, that the court never acquired jurisdiction of his person, yet the burden of establishing that fact was upon him, and it should be established in the most satisfactory manner to deprive the judgment of its effect.”
What does the petitioner offer in this collateral attack upon a judgment most seriously affecting her status, and of which concededly she had knowledge for three years prior to decedent’s death without any step whatever being taken by her to test its validity ? Her own affidavit alone, in which she says: “ I remember the interview with the man who it was claimed was Starin, at which he claims to have served me with a summons in the said annulment action. The interview occurred on June 5th, 1901, on the public highway in ‘this city in the neighborhood of Twenty-first street and Ninth Avenue in the afternoon of that day.” The very time and place testified to by Starin; “ he * * * asked me whether my name was McGarren and said, in effect, that I should take from him a paper. In his hand was an envelope. * * * I struck Starin and I think the envelope fell on the ground; then Starin went away. The envelope was not taken by me and was never in my actual possession for a
There is here no suggestion of fraud as was the case in Bulkley v. Bulkley (6 Abb. Pr. 307), cited by appellant. Assuming the facts stated by petitioner to be true, it was simply a defective service and not an entire want of service. But as appellant’s, affidavit corroborates the. process server in important details, as his original affidavit fully sets forth tlm occurrence, as where she denies his statements she is‘uncorroborated, and as many important statements in her affidavit as to other fapts are completely disproved by the affidavits of others, we find that she has not sustained the burden thrown upon her, and think that her collateral attack upon the judgment has failed, and that the surrogate was warranted in making the order appealed from.
We might well stop here, blit inasmuch as the learned surrogate has- expressed a conviction as to his want of jurisdiction ih the premises, we are of the opinion that he had power, to consider whether in entering the judgment annulling the- marriage the Supreme Court' had acquired jurisdiction of the pérson of the defendant. •
In Kerr v. Kerr (41 N. Y. 272) there was a proceeding before the surrogate to revoke letters of, administration. ■ An Indiana judgment .of divorce was submitted and extrinsic evidence of want of jurisdiction received. Judge Grover said *: “ The counsel for the appellant insists that it having appeared from the evidence that to determine which of the parties was the wife and widow of the •intestate,, it was necessary to inquire into and pass upon the validity of a judgment divorcing the intestate from the respondent, rendered by a Circuit Court of the State of Indiana, it was not competent for the surrogate- to decide that: question, and that lie -should: have dismissed the proceeding. In this position I do not concur. The statute expressly empowers the surrogate to determine the truth or falsity of the allegations-upon which the letters -were issued.. This includes the power' to decide every incidental question necessary for that purpose, whether such question be one of fact -or law.” And the surrogate was sustained in revoking her letters upon the ground of the invalidity, of the Indiana divorce established by extrinsic evidence. . • ,
It is thus directly settled by the Court of Appeals that, upon such a proceeding as in the case at bar, the surrogate has the power to take extrinsic evidence as to the jurisdiction of the court of a sister State, and finding said court had not acquired jurisdiction, to treat the judgment so obtained as a nullity.
But the judgment here is a domestic judgment. In the leading case of Ferguson v. Crawford (70 N. Y. 253) Judge Rapallo examined with characteristic care and ability the whole question of the force and effect of judgments. After stating the then well-established ■ rule in regard to judgments of sister States, that the question of jurisdiction may be inquired into, and a want of jurisdiction over the person shown by evidence, he says : “ When we come to consider the effect of these authorities, it is difficult to find any solid ground upon which to rest a distinction between domestic judgments and judgments of sister States in regard to this question. * * * In holding, therefore, that a defense that the party was not served and did not appear, although the record stated that he did, was good, our courts must have held that such is the law of this State and the common law; and consequently that in the absence of proof of any special law to the contrary in the State where the judgment was rendered, it must be presumed to be also the law of that State. The judgments of our courts can stand on no other logical basis.”
In O'Donoghue v. Boies (159 N. Y. 87) Judge O’Brieh said : “In .case of judgments recovered in the courts of other States,
Therefore, it seems clear that the surrogate has the same power ' to pass upon the question of whether the court had jurisdiction in .regard to domestic judgments that the Court of Appeals has directly decided that he has in regard to the judgments of sister States.
There remains one further consideration. As stated in O'Donoghue v. Boies (supra): “ There is but one solitary exception to this rule, and that is. in a case where jurisdiction depends on a fact that is litigated in a suit and is adjudged in favor of the party who avers jurisdiction. Then the question of jurisdiction, is judicially decided, and the judgment record is conclusive on that question until set aside or reverged by a direct proceeding. (Ferguson v. Crawford, supra, at p. 265.) ” The record in the annulment-suit shows that witnesses were called for the plaintiff and examined upon the question of the service of -the summons. I do not think that fact brings the case within the exception. It was a trial on default. There was no appearance, no answer, no witnesses for the defense and. n„o cross-examination. I do not think the fact was “ litigated ” within, the meaning of the rule. If so, it would have been a “ litigated fact ” upon the affidavit of service alojie, and hence the question .could never arise in a collateral proceeding.
It follows that the order appealed from should be affirmed, with costs.
O’Brien, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.
Order affirmed, with costs. Order filed.
See art. 4, § 1.—[Rep.