139 S.W. 1168 | Tex. App. | 1911
It appears from the agreed statement that the plaintiff and defendant were married in *1169 the republic of Mexico on the 3d day of April, 1907, and from the agreed statement and the judgment that the defendant abandoned the plaintiff on the 11th day of May, 1909. The suit was one in which service was had by publication of citation, and it appears that the affidavit for citation by publication and the publication of the citation were duly in compliance with the laws of the state of Texas, that the defendant failed to file an answer, and that an attorney of the El Paso court was appointed to represent him. The judgment recites that the defendant's exception to the jurisdiction of the court and his general exceptions were overruled. The court also found that Lula H. Montmorency, the plaintiff, is an actual, bona fide inhabitant of the state of Texas, and a resident and citizen of the county of El Paso, state of Texas, and that she has resided and had her domicile in the state of Texas and county of El Paso for more than six months preceding the filing of this suit, but the whereabouts of the defendant is unknown to the plaintiff, and that citation by publication had been duly issued and served, and ordered that the bonds of matrimony heretofore existing between the plaintiff and the defendant be, and the same are hereby, annulled and dissolved, and that the plaintiff is hereby divorced from the defendant. It was further ordered that the plaintiff pay all costs. To this judgment the defendant, through his attorney, excepted, and gave notice of appeal, and, perfecting his appeal, has brought the case to this court.
There is but one assignment of error, to the effect that the defendant, whose residence is unknown, being sued by plaintiff for the dissolution of the bonds of matrimony or for divorce in said cause, and constructive service, or service by publication alone having been had, the defendant, who did not appear and answer herein or otherwise subject himself to the jurisdiction of the court, cannot be affected by the decree of the court which is without jurisdiction, and its decree was therefore void, for the reasons that the same is violative of that portion of article 5 of the amendments to the Constitution of the United States of America, providing that "no person," etc., "shall be deprived of life, liberty or property without due process of law, etc.," this being a proceeding in personam and not in rem, and falling within the rule announced in the case of Pennoyer v. Neff. The further reasons set out in said assignment were that said court is without jurisdiction, and its decree would not be entitled to full faith and credit in other states of the Union under the provisions of section 1, art. 4, of the Constitution of the United States of America, and that it appears that neither the domicile of matrimony was in this state, nor that both parties hereto are within this state or county, so that the court, although it had jurisdiction over plaintiff, a citizen of this state, and over the subjectmatter, had no jurisdiction over defendant, and therefore no right to render the decree of divorce. It is apparent that these assignments of error are predicated upon the case of Haddock v. Haddock,
This question the United States Supreme Court answered in the negative, but Mr. Justice White, in rendering the majority opinion in that case, limited it in the judgment of the writer to the exact question before the court, and in confining their attention to the real question arising in the case he states at the outset certain legal propositions which he says are irrevocably concluded by previous decisions of the court. The fourth of these introductory statements of what he regarded as settled law is as follows: "The general rule stated in the second proposition is, moreover, limited by the *1170
Inherent power which all governments must possess over the marriage relation, its formation and dissolution, as regards their own citizens. From this exception it results that where a court of one state, conformably to the laws of such state, or the state, through its legislative department, has acted concerning the dissolution of the marriage tie, as to a citizen of that state, such action is binding in that state as to such citizen, and the validity of the judgment may not therein be questioned on the ground that the action of the state in dealing with its own citizen concerning the marriage relation was repugnant to the due process clause of the Constitution. Maynard v. Hill,
It is therefore apparent that as Pennoyer v. Neff held all personal judgments void if rendered on constructive service, and as Mr. Justice White here holds some divorce cases valid on constructive service, both in the state and elsewhere, it must amount to holding that some divorce cases are in rem. Again, it will be noted that Mr. Justice White states as irrevocably fixed law that a personal judgment on constructive service may not be enforced in another state. It is easily apparent from his opinion that some divorce cases on constructive service are enforceable in another state. It follows, therefore, as we have said, that, while it may be implied from Haddock v. Haddock that that particular divorce case was held not in rem, it just as certainly appears that some divorce cases are by that decision impliedly held to be in rem.
In his fifth introductory finding of what is fixed law, Mr. Justice White states (the language here used is our own) that, if the husband and wife are domiciled in a state, there exists jurisdiction in such state to enter a decree on constructive service, which will be entitled to enforcement in another state. In his sixth introductory statement (the language again is our own) he holds that where the domicile of matrimony is in a particular state, and the husband goes into another state in order to avoid his marital obligations, he leaves with the wife the marital domicile until a new domicile be by her elsewhere acquired. In his seventh introductory finding (the language being our own) he says that, where the domicile of matrimony is in a particular state, the courts of that state may disregard an unjustifiable absence of the wife therefrom and treat the wife as having her domicile in the state of the matrimonial domicile, and as a result *1171 such courts have power to render a judgment which will be entitled to recognition in all other states.
Whatever criticisms may be indulged in with reference to the reasoning of the majority in the case of Haddock v. Haddock, it is apparent that it is the judgment of the court of last resort of these United States, and, as such, is entitled to be given the consideration which the dignity of that court and the learning of its judges demand. The decision impresses us with the belief that the reasoning of that decision gives the court of the domicile of the innocent party jurisdiction to render a judgment binding everywhere, and deprives the court of the domicile of the guilty party of jurisdiction to render a judgment binding save in the state where rendered. Mr. Justice White again says: "As New York was the domicile of the wife and the domicile of matrimony from which the husband fled in disregard of his duty, it clearly results from the sixth proposition that the domicile of the wife continued in New York. As there can be no question that the wife was not constructively present in Connecticut by virtue of a matrimonial domicile in that state, and was only constructively served, it is apparent that the Connecticut court did not acquire jurisdiction over the wife."
Keeping in mind that we are endeavoring to determine what were the determining factors of the decision in Haddock v. Haddock, and also that we are endeavoring to determine whether the court held all divorce cases to be in personam, it is apparent, we think, that the question of whether a divorce suit was one in rem or in personam was included in, and, as an integral part of, their holding that one divorce suit on constructive service might be valid and entitled to full faith and credit, and another might not be; that the one they held valid they impliedly held to be in rem, and the one they held invalid they impliedly held to be in personam, or, as Mr. Justice White states the question: "The final question is whether to enforce in another jurisdiction the Connecticut decree would not be to enforce in one state a personal judgment rendered in another state against a defendant over whom the court of the state rendering the judgment had not acquired jurisdiction." It is apparent, also, we think, that the determining factor in the minds of the majority of the court was the domicile of matrimony; that the state of the matrimonial domicile had jurisdiction to decree a divorce on constructive service, valid everywhere, for, while they do not so directly state, they seem to treat the domicile of matrimony as the res. To us it seems that the res of a divorce suit is the relation of the parties; that is, the partnership as distinguished from the individuals who compose the partnership. Reading Haddock v. Haddock, and substituting matrimonial relation for the matrimonial domicile, it would follow (if that decision is correct in its reasoning) that, the matrimonial relation having its inception in New York, the husband, when he abandoned the wife, left with her the matrimonial relation. Applying the theory adopted in that case, the husband being the one at fault and the one who deserted the matrimonial relation, this left the res in New York, and he had in Connecticut only a suit in personam and could not have a suit in rem because the res under the facts of that case had remained with the wife.
Continuing, however, our examination of Haddock v. Haddock, using the test which the majority used in that case, we find in their introductory statement of what is settled law the majority of the Supreme Court, in paragraph 6, used this language: "Where the domicile of matrimony was in a particular state, and the husband abandons his wife, and goes into another state in order to avoid his marital obligations, such other state to which the husband has wrongfully fled does not in the nature of things become a new domicile of matrimony, and therefore is not to be treated as the actual or constructive domicile of the wife; hence, the place where the wife was domiciled when so abandoned constitutes her legal domicile until a new actual domicile be by her elsewhere acquired." This was clearly expressed in Barber v. Barber, 21 How. 582, 595,
It seems then concluded by the federal authorities (see Barber v. Barber, 21 How. 582,
Applying what we believe Haddock v. Haddock to have decided to the case at bar, we find the plaintiff was abandoned by the defendant, thus leaving with her the matrimonial domicile. In other words, her domicile was the matrimonial domicile. When she moved to Texas, it became her domicile, and became the matrimonial domicile. The court of Texas had before it the plaintiff and the matrimonial domicile, and constructively the husband. Its judgment therefore, under Haddock v. Haddock, was valid in Texas and entitled to full faith and credit under the acts of Congress and the federal Constitution, and its jurisdiction was complete.
The case is therefore affirmed.
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