57 Iowa 386 | Iowa | 1881
This proceeding was commenced in February, 1881, and it appears from the evidence that the father has not married since the divorce. The mother removed to the city of Cedar Rapids with her children in the year 1876, and shortly after her removal she married the defendant, Umphrey. The children are Avell provided for. A teacher in one of the public schools testified that for two or three years past they have attended the school taught by her, and that “ they are comfortably dressed, and, from their appearance, well treated. Their attendance has been very regular, and they are intelligent and well-behaved, and seem healthy.” We think the disposition of the case made by the learned district judge was fully warranted under the evidence. At least, as this proceeding is regarded as an action at law, we can only interfere where the finding is manifestly unsupported by evidence. Shaw v. Nachtwey, 43 Iowa, 563; Dumb v. Keene, 47 Id., 435; Jennings v. Jennings, 56 Id., 288.
Under the circumstances, we think the better rule is that the court in Wisconsin had jurisdiction to declare the status of the parties before it and grant the divorce, but that the decree in excess of this was void for want of jurisdiction. Suppose that a husband should desert his wife and remove to another State, taking hrs property with him, and she should make her application for a divorce and alimony, and make service by publication, and take her decree without any appearance by the defendant, — no one would claim that a money judgment for alimony could be enforced in such case in aforeign jurisdiction. And yet, in a certain sense, the court has jurisdiction of the defendant, but it is only for the purpose of changing the status of the complaining party and terminating the marriage.
We think it logically follows that, where the minor children are non-residents of the State where the divorce proceedings
In Woodworth v. Spring, 4 Allen, 321. it is said: “Every sovereignty exercises the right of determining the status or condition of persons found within its jurisdiction. The laws of a foreign State cannot be permitted to intervene to affect the personal rights or privileges even of their own citizens, while they are residing on the territory and within the jurisdiction of an independent government. * * * The question whether a person within the jurisdiction of a State can be removed therefrom depends, not on the laws of the place whence lie came, or in which he may have had his domicile, but on his rights or obligations as they are fixed and determined by the law of the State or country in which he is found.”
In our opinion the decree, so far as it attempted to fix the custody of the children, was without jurisdiction in the first instance. Want of jurisdiction is a matter which may always be interposed against an adjudication when sought to be enforced, or when any benefit is claimed for it. The want of jurisdiction either of the subject-matter or of the person of either party renders a judgment a mere nullity. The authorities which we have cited go even farther than this, and in effect hold that if there was jurisdiction to award the custody and control of the children of the marriage to one of the parties, by reason of the children being at the time within the jurisdiction of the
Affirmed.