44 S.C. 195 | S.C. | 1895
The opinion of the court was delivered by
On the 3d day of January, 1893, the plaintiff and defendant entered into a written agreement,
On the 3d of February, 1893, the plaintiff, Charles W. Mc-Creery, commenced his action, by summons and complaint, , against the defendant, J. Henry Davis, in the Court of Common Pleas for Eichland County, in the State of South Carolina, for a judgment requiring the said J. Henry Davis to specifically perform his contract, and that when the plaintiff, Charles W. McCreery, should deliver his deed, with full warranty, for said two lots of land to the defendant, J. Henry Davis, he should accept the same and pay the purchase money therefor to Charles W. McCreery. The defendant, in his answer, admitted the facts set up in the complaint, “except that he denies that the title offered him by the said plaintiff is free from defects or encumbrances; and he alleges that the said deeds of conveyance offered him by said plaintiff are defective in this, that the said plaintiff is, and at the time mentioned in said complaint was, a married man, and that his wife was, and is now, alive, and that said deeds of conveyance bear no renunciation of dower by his said wife.” The cause being thus at issue, came on to be heard by his honor, Judge Witherspoon, at the spring, 1893, term of the-Court of Common Pleas for Eichland County, in
“1. That on or about the 4th day of February, 1885, the plaintiff, then, and ever since, a citizen of the city of Columbia, State of South Carolina, was lawfully married in the city of Brooklyn, in the State of New York, to one Rhoda Baldwin, then a citizen of Brooklyn, and State of New York. That very shortly thereafter, the plaintiff, with his wife, returned to the said city of Columbia, State of South Carolina, his said place of residence, where they lived together as husband and wife until on or about the 7th day of June, 1887, at which date his said wife left his house and home, aud moved to the city of Chicago, Cook County, State of Illinois. That on the 14th day of March, 1891, the said Rhoda McCreery, plaintiff’s wife, filed in the Circuit Court of said Cook County, State of Illinois, a court of record and general jurisdiction, her bill of complaint against the plaintiff for a divorce a vinculo matrimonii from him, in which complaint she alleged that she was an actual -resident of the County of Cook, and had been for more than twenty months then last past a resident of the State of Illinois; that on the 4th day of February, 1885, she was lawfully married to the said Charles W. McCreery, and from that time until about the 7th day of June, 1887, she lived with the said Charles W. McCreery as his wife, at which time she was compelled to leave him on account of his extreme and repeated cruelty to her, and further alleging and setting forth in detail his acts of cruelty toward her, extreme and repeated cruelty being one of the causes for which divorces are granted in the statute law of said State of Illinois. That thereupon there issued out of said court, and under the seal thereof, the people’s writ of summons, directed to the sheriff of said Cook County, to execute. That said summons, and due notice of the filing thereof and of the complaint, were served upon the plaintiff by publication, in strict accordance with the laws of the State of Illinois, but this plaintiff did not appear, answer, or demur to said complaint. That thereafter, to wit: at the May term, 1891, thereof, there was filed in said Circuit Court of Cook County, a decree affirmatively finding the facts alleged in the complaint of the
“2. That plaintiff was seized in fee of the premises first described in said agreement prior to the date of the said decree of divorce, and that he acquired title to the premises second described in said agreement subsequent to the date of said decree of divorce.
“3. That by the statute law of the State of Illinois, Starr and Curtiss’ Annotated Statutes, first volume, page 904, paragraph 14, it is provided: ‘If any husband or wife is divorced for the fault or misconduct of the other, except when the marriage was void from the beginning, he or she shall not thereby lose dower nor the benefit of any such jointure; but if such divorce shall be for his or her own fault or misconduct, such dower or jointure, and any estate granted by the laws of this State in the real or personal estate of the other, shall be forfeited.’ That in volume 1, at page 896, paragraph 1, of said Starr and Curtiss’ Annotated Statutes, it is provided: ‘That the estate of courtesy is hereby abolished, and the surviving husband or wife shall be endowed of the third part of all the lands whereof the deceased husband or wife was seized of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form.’
“4. That by act of the legislature of the State of New York, passed in 1828, now section 1756 of the Code of Procedure of said State, it is provided: ‘In either of the following cases, a husband or wife may maintain an action against the other party to the marriage, to procure a judgment divorcing the parties, and dissolving the marriage, by reason of the defendant’s adultery: 1. Where both parties were residents of this State when the offence was committed. 2. Where the parties were married in this State. 3. Where the plaintiff was a resident of this State when the offence was committed, and is a resident thereof when the action is commenced. 4. Where the
“5. It is admitted that the deed tendered by the plaintiff did not have a renunciation of dower by Mrs. Ehoda McCreery, wife of grantor.
“ ‘Exhibit B. — State of Illinois, Cook County. Circuit Court of Cook County, May Term, A. D. 1891. Ehoda McCreery vs. Charles W. McCreery — Bill. This day came again the said complainant, by John C. Hendrix and Charles Bary, Esq., as solicitors, and it appearing to the court that said defendant has had due notice of the pendency of this suit, by publication and mailing notice, according to the statute in such case made and provided, that the default of said defendant was taken, and the complainant’s bill of complaint herein taken, as confessed by said defendant. And the court having heard the testimony in open court, in support of said bill of complaint (a certificate of which evidence is filed herein), and now being fully advised in the premises, doth find that the complainant is-an actual resident of Cook County, and has been a resident of the State of Illinois for over one whole year prior to the filing of the bill in this case, and that defendant has been guilty of extreme and repeated cruelty toward the complainant, as charged in the complainant’s bill of complaint. On motion of said solicitors for the complainant, it is ordered, adjudged, and decreed, and this court, by virtue of the power and authority therein vested, and the statute in such case made and provided, doth order, adjudge, and decree, that the bond of matrimony heretofore existing between the complainant, Ehoda McCreery, and the defendant, Charles W. McCreery, be, and the same are hereby, dissolved, and the same are dissolved accordingly.”’
Thereafter, to wit: on the 31st day of May, 1893, his honor, Judge Witherspoon, decreed: “Considering the marriage of Charles W. McCreery as contracted either in this State or in New York, I conclude, as matter of law, that the judgment of divorce granted in Cook County, in the State of Illinois, upon the application of plaintiff’s wife, Mrs. Ehoda McCreery, does not dissolve the matrimonial relation of her husband, the plaintiff) Charles W. McCreery, as a citizen of this State. I further
Thereupon the plaintiff appealed to this court upon ten grounds, which are designed to present in its different phases the question of the duty of our courts (we mean the courts of this State) to recognize as valid the judgment of the Circuit Court for Cook County, in the State of Illinois, whereby Ehoda McOreery and Charles W. McCreery were declared no longer man and wife. "We will not reproduce, in this opinion, these grounds of appeal, but direct that they be included in the report of this case.
The appellant here contends that marriage is not a civil contract, but a status, .a condition; that marriage is a res that accompanies the husband and wife, or either of them, wherever they, or either of them, may be domiciled. Is marriage a status, not a contract? Is it trne that, although formed by a contract by one man and one woman, whereby they, each, for life become husband and wife, that when the union is complete, the man has the status of husband, and the woman the status of wife, separate and apart from the civil contract? Is it true that this status, in each, may be said to exist when separate and apart? Is it true that this status in both, or either one of them, is a res? Is it true that either one of them, by becoming domiciled in a State different from that in which the other is then domiciled, thereby gives a jurisdiction to the court of the State of the new domicile of the status of such husband or wife
We have been delighted with the tone, the ability, and the fidelity with which each side to the controversy has presented its views. That we have been interested, is true. That we have been left in some doubt, at times, is true; but that the conclusion we have reached is now entirely satisfactory to us, is equally true.
These parties, Charles W. and Ehoda McCreery, were married in the State of New York, but immediately thereafter removed to and were domiciled in South Carolina, the home of the said Charles W. McCreery. We are inclined to think that this contract of marriage wears a twofold aspect or character, partaking of certain characteristics under the laws of New York, and partaking again of certain characteristics under the laws of the State of South Carolina, where it was to be performed. Story Conflict of Laws, section 299; 2 Kent, 460. But
This view is presented most ably by Mr. Bishop in his work on Marriage, Divorce, and Separation, to which we wdll have occasion hereafter to refer; and such is his will power and his rugged strength in stating his proposition, together with the masterly arrangement observed in presenting them, that it is with difficulty one escapes his conclusions. We óannot but be impressed, however, with the view that he has taken too much for granted when he announces that, although marriage is entered into by the parties to it under a contract, yet that as soon as the contract is executed, at once there is breathed into the relation an import far higher than a contractual relation — in fine, that a status becomes thereby assigned to the parties, over and above and beyond that of any contract. He cites in support of his theory the fact that all contracts may be annulled by the parties who create them except marriage, under which neither party to it, nor both parties to it, can, of themselves, terminate it, and that the law alone can extinguish the contract of marriage. He masses, so to speak, the difficulties in viewing it as a contract as follows: “Marriage, as distinguished from the agreement to marry, and from the act of becoming married, is the civil status of one man and one woman legally united for life, with the rights and duties which, for the establishment of families and the multiplication and education of the species, are, or from time to time may thereafter be, assigned by the law to matrimony. * * * We know that the foregoing definition
Now, this author admits that Bigelow, J., in Little v. Little, 13 Gray, 264, correctly stated the proposition, that “all authorities concur in the conclusion that marriage has its origin and foundation in a purely civil contract.” This is an, or rather the, initial point. How do these authors reach the conclusion, which Dr. Bishop announces, “and though the new relation, that is,- the status, retains some similitudes reminding us of its origin, the contract does in truth no longer exist, but the parties are governed by the law of husbaud and wife?” Is it not an assumption coined in order to give a plausible basis to the solution of an otherwise untenable position? Is it not by this means that they hope to give currency to an otherwise baffled policy, namely: to so construct a plan, that thereby they may successfully invoke that portion of the Federal Constitution relating to the effect to be given by all the States to the acts and judgments of one State, and thus force all other States to give effect to judgments for absolute divorces? If marriage were still esteemed a civil contract, they could not hope to escape the defect of jurisdiction hereafter to be discussed. But by coining this new term, “status," and ascribing theeffacacy of “res" to it, under certain principles hereafter to be referred to, it is deemed by them that the difficulty has been overcome. We will investigate these later matters hereafter. Just now, we are interested in this discovery made by Dr. Bishop in the year 1852, which seems to have become very popular with all those persons who favor divorce laws.
Before referring to the author more directly in regard to the pernicious effect of his new doctrines, it is but just to say that in his work, so largely relied upon by the appellant here, and whose title has already been stated, and from which such heavy quotations have been made, he intimates that divorces should be confined to the cases of adultery, désertion, and scevitia. While this is true, he distinctly lays down doctrines that are at variance with Holy Writ, and seems to take pleasure in the reflection that he first coined the terms “status” and “res” as applied to marriage and divorce. Now, candor compels us to
It will be at once seen that the framers of our Federal Constitution have, by this section, provided that while under the law of nations, from principles of comity, the judgments of foreign countries should be respected as such in every other country when produced, provided such foreign judgments accord with her domestic policy, &c., that it should be the duty of every State in this Union of States to give full force and effect to the judgments of any other State when duly authenticated. Hence, if this doctrine is sound law, holders of judgments obtained in a different State have the right to produce such judgments in the courts of this State, and it is our duty to respect them and give them the same force and effect they have in the State where rendered, as required by the Constitution of the general government. We would properly and naturally look to the adjudications in the Supreme Court of the United States for the interpretation of this legislation, and in doing so, we find a goodly number of cases bearing upon this matter. Among these cases are Rose v. Himely, 4 Cranch, 269; Mills v. Duryee, 7 Id., 484; Hampton v. McConnel, 3 Wheat., 234; McElmoyle v. Cohen, 13 Peters, 312; Landes v. Brant, 10 How., 348; Webster v. Reid, 11 Id., 437; D’Arcy v. Ketchum, Ibid., 165; Harris v. Hardeman, 14 Id., 334; Christmas v. Russell, 5 Wall., 290; United States v. Arredondo, 6 Peters, 691; Wilcox v. Jackson, 13 Id., 498; Thompson v. Whitman, 18 Wall., 457; Hanley v. Donoghue, 116 U. S., 4; Cole v. Cunningham, 133 Id., 107. And there are other cases.
We cannot undertake to quote from all these cases. Two will suffice. In Thompson v. Whitman, supra, Mr. Justice Bradley, who delivered the judgment of the court, in effect, held that “neither the constitutional provision that full faith and
Yery naturally we ask, did the court of the State of Illinois have jurisdiction of Charles W. McCreery when it rendered the judgment of divorce1? It is conceded that at no time, either when such action was commenced, or while it was pending, or when decided, was Charles W. McCreery within the limits of the State of Illinois. He did not appear in such action, nor answer nor demur. His domicile has never been in the State of Illinois, but, on the contrary, at all times in the State of South Carolina. Jurisdiction was aptly defined in U. S. v. Arredendo, 6 Peters, 691, to be the authority of the court to take cognizance of the cause or controversy at bar. The authenticated judicial record is that of an action wherein Ehoda Mc-Oreery is styled plaintiff and Charles W. McCreery is styled defendant, and the judgment therein purports to dissolve the
The principle that if the action was in personam it is a nullity, is enforced in the United States Supreme Court in the case of Pennoyer v. Neff, 95 U. S., 714. In that case one Mitchell held a debt against Neff, and, while Neff was beyond the limits of the State of Oregon, said Mitchell brought suit against Neff to recover his debt. In that suit, notice of the pendency of the same, and requiring Neff to appear and plead, was duly published in a newspaper, as required by the statute of the State of Oregon in such cases made and provided; but Neff neither made appearance nor did he plead. Judgment was rendered against Neff, and the sheriff sold a tract of land owned by Neff in said State. Pennoyer became the purchaser at said sale, and brought his action against Neff to recover the land. In this action by Pennoyer, Neff denied the validity of Mitchell’s judgment, under which the land was sold, because he was not in the State, and service was alone by publication. The Supreme Court of the United States decided that the court of Oregon was without jurisdiction to render such judgment, and dismissed Pennoyer’s action. The Supreme Court of South Carolina, in the action of Tillinghast v. Boston & Port Royal Lumber Co. and Moore v. S. C. Forsaith Co., 39 S. C., 484, adopted the same view, and held that jurisdiction as to defendant out of this State could not be acquired by publication so as to make judgment in personam. And the subsequent cases of Toms v. Richmond &c. R. R. Co., 40 S. C., 520, and Gibson v. Everett, 41 S. C., 22, have enforced such doctrine.
But now comes the difficult question, which is raised in this way: Mrs. McCreery having resided in the State of Illinois for more than twenty months before she instituted her action for
If marriage is a civil contract, whereby the domicile of the husband is the domicile of the wife, and whereby the contract between them was to be located in that domicile, it is difficult to see how the absence in another State of either party to such contract from the State where was located the domicile of the marriage, could be said to carry such contract to another State, even if we were to concede that an idea, a mental apprehension or metaphysical existence, could be transmuted so as to become capable of attaching to it some process of a court, whereby it might be said to be under the exclusive jurisdiction of such court. If Mrs. McCreery could carry that res in the State of Illinois, then Mr. McCreery had the same res in the State of South Carolina, at the same time. In other words, the same thing could be in two distinct places at one and the same time, of which res the courts of Illinois would have the power to control as if it were a physical entity, and of which res the courts of South Carolina would have the power, at the same moment of time, to control as if it were a physical entity. Such a conclusion would be absurd.
The justice who delivered the opinion in the case of Pennoyer
Now if the remarks, as dictum alone, of Mr. Justice Field, were intended to be restricted by him to such cases where the marriage contract was executed while the domicile of both parties was in that State, and where the laws of such State authorized the granting of divorces, we suppose it correctly sets forth the law that should govern in such a case. But if it is intended to announce that such a conclusion would be proper, in a case where a marriage contract was made in- a State where both were domiciled, and in a State where divorce is not allowed, and where one of the parties to such contract of marriage should remove to a State where divorces are allowed, and there institute an action for divorce, causing the other party to the marriage contract to be served by publication
Charles W. McCreery and Ehoda, his wife, whether it be said their contract should be governed by the laws of the State of New York, where the marriage was solemnized, or whether in the State of South Carolina, which was the husband’s domicile and where he is still domiciled, and where the marriage was to be performed, never agreed that their rights, duties, and liabilities, as husband or wife, should be determined by the State of Illinois, or that the determination of these rights, duties, and liabilities might be had in an action for divorce for scevitia, where service upon either of them might be made by publication. And when, therefore, a judgment of this last named State [was rendered] in an action to which Charles W. McCreery was no real party, such judgment was a nullity as to him. In the opinion of Mr. Justice Field he further said on this point: “Whatever difficulty may be experienced in giving to these terms (due process of law) a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as is forbidden, there can be no doubt as to
Can there be any doubt but that the judgment of the court of the State of Illinois does directly impinge upon the personal rights and liabilities under his contract of marriage of Charles W. McCreery with E’noda McCreery? By that contract-, her personal presence with him was his right. It was his privilege under his contract of marriage to receive at her hands those ministrations incident to the marriage .state. To allow this Illinois judgment to be effective as a divorce to Charles W. McCreery cannot be law! In Hullr. Hull, 2 Strob. Eq., 174, it was held that Gideon J. Hull having married his wife while both were domiciled in the State of Connecticut, under whose laws it was competent for either party to obtain a divorce for desertion, and in such a suit service might be made by publication, and having deserted his wife and thereafter she having procured a divorce from him a vinculo matrimonii in an action wherein he was served by publication, that such divorc§ was valid. This judgment was rendered because the marriage contract between them was said to have been made with all the provisions.of the laws of Connecticut pertaining to marriage, including divorce, as part and parcel of such contract of marriage. And this was done and adjudged notwithstanding the State of South Carolina did not allow divorces.
Again, we say we refuse to recognize this judgment of the court of the State of Illinois as valid in our State, because there was no such thing as a status or res in the conception or in the records of these parties when the marriage was made by them. But even if we were to concede, for the sake of argument, that marriage created a status or res, as contended for by the appel
(1) Barnum v. Barnum, 42 Md., 251. Here John B. Barnum was the child of parents living in the State of Arkansas, but who were not married at his birth. Subsequently, the legislature of the State of Arkansas was induced to pass an act legitimatizing said John D. Barnum as the child of his parents. Subsequently, there was property in the State of Maryland that under her laws would pass to the legal issue of John B. Barnum’s father. Thereupon John B. Barnum brought his action in the courts of the State of Maryland to recover this property. It was there conceded that the property could be recovered by him if he was entitled to maintain the status of a chil<j_ of his father. The statute of Arkansas was relied upon for that purpose, but the court held that he was not thereby made the child of his father in Maryland. The language of the decision on this point was as follows: “This act could have no extra territorial operation whatever, except as to any rights that may have been acquired under it in the State of Arkansas. As to such, it ought to be respected everywhere (Story Conf. L., 101, 102). But as to capacity to acquire property beyond the State passing the act, by virtue of the particular state given the party, that the legislature could not confer. Even if the act had professed to legitimate John B. Barnum, without reference to a previous marriage, it could have no operation here,
(2) The case of Smith v. Derr's Administrators, 34 Pa. St., 126. Here the brother of the deceased testator, Daniel Derr, who lived in the State of Tennessee, was the father of an illegitimate daughter, Nancy. On his petition, Nancy was duly legitimated by a decree of the Circuit Court of Giles County in said State (Tennessee), where she then and still resided. And the question presented in the case just cited was, whether she had any interest in the estate of the deceased testator, who lived and died in the State of Pennsylvania. The court said: “Nancy is the illegitimate niece of the testator, born in Tennessee, and legitimated there on the petition of her father by a proceeding in court. This forgives the vice of her birth in Tennessee, but not here. * * * A capacity in Tennessee does not prove capacity here. So. far as our law is concerned, legitimation by the subsequent marriage of the parties abroad, by act of a foreign legislature, or by judicial decree abroad, are all fruitless. If they are allowed to constitute inheritable capacity, then adoption might have the same effect. Then we should be without any law of inheritance, in favor of relationship in other States, except such as our neighbors should be pleased to give us.”
As to the matter of guardian and ward, it is proper to say there is a status assigned to each, under the law, where such relation is established. But when the guardian attempts to assert his status as such, in a State different from that wherein his appointment was made, the latter State refuses to recognize it. The decision of the United States Supreme Court in the case of Hoyt v. Sprague, 103 U. S., 631, is in point here. In that case Mr. Justice Bradley, as the organ of the court, said: “One of the ordinary rules of comity exercised by some European States, is to acknowledge the authority and power of foreign guardians — that is, guardians of minors and others appointed under the laws of their domicile in other States. But this rule of comity does not prevail to the same extent in England and the United States.” * * “In regard to real estate, it is entirely disallowed, and is rarely admitted in re
If, then, acts of the legislature and judgment of courts of States, pertaining to status of parent or child, guardian or ward, will not be entitled, when the said acts or judgments have been duly authenticated and presented in the courts of different States, to give such persons the same status as that obtained in the State where rendered, why should a different rule prevail touching the status of a husband or wife?
As far as the Supreme Court of the United States has ever gone in the matter of divorce, is to assert that, for the purpose of obtaining a divorce, a wife may acquire a domicile apart from that of the husband; that divorce, when granted, does not impair the obligation of a contract; that it is in the power of a legislature in a State different from that of the domicile of the married parties to grant a divorce which is operative in the State where granted; that it is the exercise of a legitimate power when the State legislature grants a divorce, either by the legislature acting directly or by conferring a power to do so upon the courts of that State, provided the Constitution of such State does not deny such power, that a divorce so granted is effective, even without the residence of both parties in the State at the time the divorce is granted. Cheever v. Wilson, 9 Wall., 108; Maynard v. Hill, 125 U. S., 190. In the first case cited, both parties, husband and wife, appeared to the action in the court of the State of Indiana, where the divorce was
Another reason which may be advanced why the conclusions of the Circuit Judge, in denying force and effect to this Illinois judgment of divorce, should be sustained by this court, is that the whole record may be examined to see if the court pronouncing the judgment had jurisdiction, and that even if it be admitted that divorce judgments should have accorded to them extra territorial effect, in case the record discloses that such court based its judgment upon the seizure of the res, this authenticated judgment is silent as to any such jurisdictional allegation. But while this is true, we prefer to meet the issue as it has been joined in the case at bar, and, therefore, we base our refusal to give force and effect to the judgment of divorce as rendered by the court of the State of Illinois, upon the grounds already indicated.
So, too, in the case of Jones v. Jones, 108 N. Y., 415, although the Court of Appeals of New York upheld a divorce of a New York marriage by the courts of Texas, it was done because the husband, who was domiciled in the State of New York when the wife began her action for divorce in the courts of the State of Texas, appeared in said action and answered to the merits of the action. The Appeal Court of the State of New York was careful to announce in its judgment, “that the marriage relation is not a res within the State of a party invoking the jurisdiction of a court to dissolve it, so as to authorize the court to bind the absent party, a citizen of another jurisdiction, by substituted service or actual notice of the proceeding, given without the jurisdiction of said court, and like other contracts, the contract of marriage cannot be annulled by judicial sanction without jurisdiction of the .person of the defendant.” (Extract from the syllabus of the case cited.)
And also the case of Williams v. Williams, 130 N. Y., 193, decided in December, 1891, is in point as illustrating the attitude of the courts of New York on this question of divorce, so far as judgment therefor rendered by the courts of a State different from that in which the domicile of the defendant was had, and to which action for divorce he neither appeared nor answered. In the case just cited, the leading facts seemed to be these: The
We have thus taken the pains to consult the decision of the courts of the State of New York for the purpose of showing, that even if the marriage could be regarded as a New York marriage, the divorce here in question could not be regarded as valid. Having been admitted that the courts of New York are only allowed by the laws of that State to grant absolute divorces for adultery, and the alleged j udgment of the courts
There is nothing unreasonable in this. The great value of “the consideration consists in this, that the wife surrenders her person and her self-dominion to the husband, and enters into an indissoluble engagement with him, foregoing all other prospects in life; and if the consideration for which she stipulates fails, she cannot be restored to the status in quo. She can have no remedy or relief.” Rivers v. Thayer, 7 Rich. Eq., 144. In Wilson v. McConnell, 9 Rich. Eq., 513, the court used this language: “But this claim is met by a corresponding equity on the part of the widow, who is entitled (under her marriage) to the position of a purchaser for valuable consideration against all but existing liens” — liens that existed before the marriage. So in Brooks v. McMeekin, 37 S. C., 303, this court held: “We are, therefore, enabled to declare it to be the law, as derived from our own decisions, that in this commonwealth marriage is a valuable consideration, paid by the wife for those rights and estates that, by our laws, are accorded the wife as a wife.”
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.