25 Mich. 247 | Mich. | 1872
This defendant has been convicted of bigamy, and notv, upon exceptions, asks that the verdict be set aside. Both the marriages were admitted. The first took place in 1857; the second was to one Minnie Kopp, in August, 1871, while the first wife was still living. The defense was, that before the second marriage the defendant had been divorced from his first wife, on her application. To establish this, he gave in evidence a copy of the record of a proceeding in the court of common pleas of Noble county, Indiana, which contained: 1. What purported to be a complaint of Mary, the first wife, against the defendant, presented at the October term, 1870, averring her residence in Noble county; charging defendant with refusal to speak with or treat her as a wife, and finally with refusal to cohabit with her, and with abandonment, and praying for a divorce; 2. An authority from the defendant to one Goodwin, an attorney of Noble county,' “to appear for me in any court of record of said county, and answer for me, and waive process that my wife, Mary Daw ell, may procure a bill of divorce;” 3. An answer by Goodwin, on behalf of defendant, admitting the wife’s residence in Noble county, but denying all the other allegations of the complaint; 4. A judgment of the court, rendered on the third day of the same October term, purporting to be based on evidence, and declaring the marriage dissolved.
This expeditious proceeding, in which the defendant, in voluntarily appearing, declares his purpose to be to enable his wife to obtain a divorce, bears upon its face such evidence of collusion as, in this state, would justify the setting aside of the decree, whenever attention should be called to the facts; and we do not doubt that such would be the case in Indiana also, for the supreme court of that state
The prosecution claimed on the trial that the whole proceeding was void for want of jurisdiction; that the courts of Indiana never had any authority to decree a divorce between the parties, and that the decree in the case was procured by a fraud upon the law and deception practiced upon the court. To establish this they introduced evidence tending to show that the said Mary Dawell and William Dawell, mentioned in said record, Avere, during the whole of the year 1870, residents of the county of St.. Joseph, and state of Michigan, and that they had resided, and still continued to reside, in said county of St. Joseph,, in the same house, for more than two years preceding the time of trial (January 25, 1872), and never resided in the state of Indiana, and that during that, time the said MinnieKopp had resided.with them. The prosecution then introduced the said Goodwin as a witness, Avho testified as follows : “ I resided at Kendallville, Indiana, in October, 1870; am by profession an attorney at law.” Being then shown the Noble county record, he proceeded: “ I have knoAvledge of this case. I appeared for the defendant, William Dawell, in said court. I had Avhat purported to be authority to appear for himy handed me by Mr. J. B. Wade, attorney for plaintiff in said proceeding. I have before me the original authority. It is in writing. I think I know Mr. Wade’s handwriting. I have seen him write. The body of this is in Mr. Wade’s handwriting; the signature is that of some other person. I find the record-to contain a true copy of the original authority handed me by Mi\ Wade. I filed the paper Avith the clerk of said court.
Upon this evidence the counsel for the defendant made several requests for instructions to the jury, the substance of which was, that the record of divorce in Noble county was a complete protection to the defendant in this prosecution, even though the divorce may have been obtained by fraud, either in giving the court jurisdiction or in proving the allegations of the petition; that the question of fraud cannot be raised except by the parties to the record, and consequently cannot be gone into in this proceeding; and, if it could be, no evidence has been given in the case, 'having a tendency to establish it. The court declined these requests, and charged the jury as follows:
"1. The defendant in open court having admitted his first marriage to Mary Dawell, and afterwards his second marriage, in this county, to Minnie Kopp, his former wife being then still alive, as charged in the information against him, and evidence having also been offered before you to show that the said Mary Dawell and the said defendant were, at the time of said last marriage, and for a year or more next preceding had been, residents of this county of St. Joseph,
(i2. If you find from the evidence that at the time the alleged proceedings for a divorce were instituted, and a decree of divorce obtained in the court of common pleas of Noble county, Indiana, introduced in evidence on behalf of the respondent in this case, the said Mary Dawell and the respondent were each of them actual residents of this state, and had been for a year or more immediately preceding the time of instituting the said proceedings, and the obtaining of the said decree, and were neither, of them at the time residents of the state of Indiana, then the said decree of divorce is no defense to this prosecution.
“ 0. If you find from the evidence that the said first wife, Mary Dawell, and the said defendant, at the time the said proceedings were instituted, and the said decree of divorce obtained, in the court of common pleas of Noble county, Indiana, were neither of them residents of said state of Indiana, hut were residents of this state, and that said proceedings were commenced by agreement or collusion between the said parties, in this state, to obtain a divorce in the state of Indiana, then such decree is no defense in this prosecution.
e: 4. If you find from the evidence that said proceedings for a divorce in the court of common pleas of Noble county, Indiana, were instituted by the said defendant in this case, William Dawell, without the knowledge or consent of his said first wife, Mary Dawell, and that she never actually appeared in the case, and never authorized any one to
“ 5. If you find that either of the parties was a resident of Indiana at the time said proceedings were instituted and said decree of divorce obtained, and that both parties voluntarily appeared in the said suit, or authorized their appearance to be entered therein, then said decree is a perfect defense to this action.”
The defendant insists that all these charges, except the last, were erroneous, and it is upon exceptions to these, and to the admission of the evidence upon which they were based, that we are now to review the trial.
It is worthy of notice at the outset that neither the first wife nor the attorney who nominally appeared for her in the state of Indiana, was made a witness on the trial. It was not in the power of the prosecution to make a witness of the first wife, except with defendant’s assent; but he was at liberty under our statutes to call her if he saw fit to do so. Neither could the prosecution take the testimony of the attorney, by commission; but the defendant might have done so, if he supposed that any facts within his knowledge would be of service to the defense. These facts may be of no importance to the decision of this cause, but they are not to be overlooked when we come to consider the consequences to which the doctrines maintained on behalf of the defense must lead. The decree of divorce under consideration was obtained either by fraudulent collusion between the parties, or, if not by collusion, then the husband must have caused the complaint to be filed in the wife’s name, and practiced a fraud upon her, as well as upon the law and the court. The appearance of the record, as I have already said, indicates collusion; but it is a most significant circumstance, that the only party who, by the evidence, is shown in any manner to haye had any thing to do with
But I do not propose to consider very particularly the .special facts of this case, but rather to examine the principle that underlies them, in order to determine, if possible,
In considering this subject I do not have occasion to call in question the wisdom of the divorce laws of our sister state, or the justice or propriety with which those laws have been administered by the supreme judicial tribunal of that state. The decisions of that tribunal have, in the main, I think, been wise and sound, and such as we all concur in; but it is a fact, which I think I may justly say is well known and understood, that in the inferior tribunals of that state, divorces are obtained with more facility than in the circuit courts of Michigan, and that, in consequence, married persons in this state, discontented in their relations, or smitten with a new passion, but having no good cause for divorce, have frequently, and sometimes under very outrageous circumstances, resorted to Indiana, and obtained a decree purporting to dissolve their marriage relations.
Now I understand the rule to be, that to give the courts of any state jurisdiction over the marriage relation between a husband and his wife, one of the parties, at least, must have a domicil within that state. Some of the judicial decisions make further requirements; but no court has ever held that any less could be demanded. It is, then, and must be, admitted on all hands, that while these
It is clear, then, that the court in Indiana had no authority to decree a divorce between these parties. Any
To. this it is replied, that the record shows a finding by the Indiana court that the parties resided in that state, and that this finding is conclusive upon the question of .jurisdiction, except on motion in the same court to vacate the decree. That doctrine brings us to this: That although the Indiana court had no jurisdiction to divorce two of our citizens, yet, having assumed to do so, on the ¡false statement of one or both of the parties, that they resided in Indiana, the decree is absolutely binding, unless dhe court sees fit to vacate it. Iu other words, the marriage relation between two of our citizens depends upon the discretion of a foreign court, which by law has no concern with tit whatever. Such a doctrine is not only monstrous in its ■results, but it has, as I conceive, no support whatever in authority. It has been held invariably, that a foreign judgment is open to be assailed by evidence showing a want of jurisdiction. The only question in dispute has •been, whether the recitals in the record of the appearance of the parties could be disproved for this purpose, — some ■cases holding that they could, others that, in the case of .a judgment of a sister state, they could not. That particular question, as an abstract one, I do not discuss, because I conceive there is a difference between disproving recitals .of jurisdiction of the parties and jurisdiction of the subject matter in divorce cases, which is the point involved here. If this might not be disproved, a party seeking a divorce need only apply for it in some distant country, and find suitable tools to aid his fraud, and the difficulty and -expense attending a proceeding to exhibit the facts to the
But it is said that if the parties appear in the case, the the question of jurisdiction is precluded. That might be so if the matter of divorce was one of private concern exclusively. But such is not the case under our laws, nor will it ever be until it comes to be understood that parties have the right to marry and unmarry at pleasure, and that if they choose to trade spouses, it is the concern of nobody but themselves. Such an understanding would require a considerable change in the existing laws of this state. As those laws now are, there are three parties to every divorce proceeding; the husband, the wife, and the state; the first two parties representing their respective interests as individuals; the state concerned to guard the morals of its citizens, by taking care that neither by collusion nor otherwise, shall divorce be allowed under such circumstances as to reduce marriage to a mere temporary arrangement of conscience or passion. The state of Indiana has recognized this fact, in requiring an appearance in divorce suits by a public officer, whose duty it should be to see that a legal case was established (2 Rev. Stat., ¶. %88); and though we have no similar statutory requirement in this state, we have always recognized the principle, and the court has considered it its duty to inquire specially into collusion in
This third party, therefore, not having consented to the proceedings, expressly or impliedly, and the foreign tribunal having confessedly no authority over the subject mat
It is insisted, however, with great earnestness, that whatever might have been the case otherwise, the provision in the constitution of the United States, that full faith and credit shall be given in each state, to the public acts, records, and judicial proceedings of every other state {Const, of U. S., Art. IV., § Í), will preclude our inquiry into the validity of this divorce. If that provision of the constitution could be so construed as to protect and make valid a fraudulent proceeding like the one in question, it would certainly be a most singular perversion of its original purpose. The provision itself was eminently wise and proper. It had for its object to prevent any such weakening of the bonds of the Federal Union, as might follow from the states disregarding what was due to courtesy and comity when their respective proceedings should come under 'consideration, and opening anew the controversies and questions, which, in the jurisdiction having properly and primarily the control of them, had once been determined. Its whole purpose and aim was in the direction of justice, comity, and good neighborhood between the states; and it would be most remarkable if it could now be employed to bolster up a proceeding where a court of one state has interfered in a matter which wholly pertains to the concerns of another state; which is within the exclusive jurisdiction of such other state, and relates to its citizens exclusively; which it is impertinent for such court, in any
But I do not concede that the federal constitution will properly admit of any such construction. That instrument is not one to be construed technically] it was meant to subserve great and beneficial ends] and any narrow and technical construction that makes it defeat those ends, and work mischief, is obviously a perversion of its real meaning. The provision in question was not designed to make good a judgment rendered without jurisdiction] its object was, so far as judgments are concerned, to preclude their being disregarded in other states, when a proper tribunal, with competent jurisdiction, had rendered them.. Many decisions of the federal courts were cited on .the argument for the defense, but none of them holds that a void judgment is validated by this provision. The most of them were cases of money demands, or suits for property, where only the parties to the record were concerned, and the rights and sovereignty of another state were in no way involved. They presented the question generally, whether the defendant had been properly brought in] and they have very little analogy to a case of divorce, where the state, the third party concerned, neither does nor can appear abroad, and where the defendant can easily contrive to be the sole actor, as he probably was in this case, and may possibly bring the proceedings to the knowledge of the wife for the first time when, armed with the decree of the foreign court, he notifies her to leave his bed and board to make room for a new comer. The case most relied upon is, Cheever v. Wilson, 9 Wal, 108, but I discover nothing in it that can benefit the defendant. It does not appear to have been disputed there, that the complainant had a nominal residence in the jurisdiction where the divorce was rendered, but it was claimed that it
Our attention has also been called to the recent case of Kinnier v. Kinnier, 45 N. Y., 535, which is supposed to overrule a considerable number of former New York cases decided in harmony with the views I have here expressed. If it does overrule them, it is opposed to a very great weight of American authority, and I refer to the following cases in support of this opinion: Barter v. Root, 10 Mass., 260; Hanover v. Turner, 14 Mass., 227; Lyon v. Lyon, 2 Gray, 367; Chase v. Chase, 6 Gray, 157; Smith v. Smith, 13 Gray, 209; Shannon v. Shannon, 4 Allen, 134; Leith v. Leith, 39 N. H., 20; Pawling v. Bird’s Ex’rs., 13 Johns., 192; Borden v. Fitch, 15 Johns., 121; Vischer v. Vischer, 12 Barb., 640; McGiffert v. McGiffert, 31 Barb., 69; Kerr v. Kerr, 41 N. Y., 272; Todd v. Kerr, 42 Barb., 317. And see Maguire v. Maguire, 7 Dana, 181; Ditson v. Ditson, 4 R. I., 87; Smith v. Smith, 4 Greene, Iowa, 271; Thompson v. State, 28 Ala., 12; Parish v. Parish, 32 Ga., 653.
But in terms it overrules only the case of Jackson
The subject matter of a divorce suit is just as much
I think the excejations are not well taken, and that the circuit court should be advised to proceed to judgment.
Defendant was indicted for bigamy. There was no dispute concerning the fact of his having been married twice, both wives being living. But a divorce was granted in a suit brought against him in Indiana by his first wife, and the effect of that divorce is the only important question in the cause.
The Indiana proceedings appear to have been regularly begun in the name of the first wife, by a petition filed in due form, containing all the averments of residence, marriage, and other facts necessary to authorize relief to be granted. Defendant appeared by attorney, and upon a hearing the divorce was granted in accordance - with the statutes of Indiana.'
On the trial of the present criminal case, this divorce was assailed on the grounds, that the Indiana bill was filed without authority from the complainant therein, and that both parties were residents ' of Michigan, and the Indiana proceedings were collusive and fraudulent.
The complaint in Indiana was not signed by the complainant, and was not verified by her. The effect of the decree, if valid, was to operate directly upon her marital position and rights. While it is not very common for any but a defendant to object to a judgment for want of jurisdiction, this is because it is not very common for suits to be brought without the act and consent of the plaintiff or
If it is open to a defendant not served with process, to assail the judgment of a court of another state, by showing that the appearance entered in his name was unauthorized, there is no reason why a supposed complainant, whose name has been used without authority, should not, on the same principle, attack the jurisdiction as unlawfully exercised. A plaintiff is quite as liable as a defendant, to be damnified by a judgment obtained in the interest, and by the contrivance, of the adverse party.
It was held by the supreme court of the United States, in Shelton v. Tiffin, 6 How. R., 163, that where the record showed no personal service or appearance, and the only way in which a party was brought before the court was by the action of counsel who appeared and waived process, the party for whom they purported to act might show the want of authority, and thus defeat the judgment. While it is. universally conceded that the appearance of counsel is presumptively authorized, it is there held not to be conclusively binding. As the doctrine thus decided has not been overruled or doubted, we think it disposes of the question as to both parties in the divorce suit. There seems to have been no doubt of the husband’s being represented by his
The evidence -presented on the trial did not show whether the suit in Indiana was authorized or not by the wife. ■ It showed almost conclusively that, if she did authorize it, there was some understanding between the parties that the case should be disposed of without any question being raised as to the real residence of either of them, and the finding of the jury, as to this latter point, was authorized by the testimony. Its effect becomes important in considering what seems to be regarded as the chief matter in ■controversy.
The question thus presented is, whether a judgment rendered by a court of another state on pleadings which, if proved, gave full authority to pronounce judgment, and where the parties both submitted themselves to the jurisdiction, can be assailed _ collaterally, by denying the truth of any of the matters which the court was required to pass upon as necessary to justify the judgment rendered by it.
If Mrs. Dawell was a bona fide resident of Indiana for the time required by the laws of that state, and the suit was brought by her authority, the divorce was undoubtedly valid. The question is, whether evidence can now be given to show she was not a resident of Indiana, in order to defeat the decree.
There is no ground for making any distinction between the various classes of “judicial proceedings” to which “full faith and credit ” must be given under Article IV., section 1, of the constitution of the United States. It has never been denied that divorce cases were embraced under this provision. And no court has deemed itself at liberty to review a divorce granted in another state, on the general merits, any more than any other judgment.
The earlier cases in Massachusetts, and New York, held all judgments in sister states to be assailable, on many grounds not open to question now, under any of the decisions. Since the effect of such judgments was settled in Mills v. Duryee, 7 Cranch R., 481, they are held entitled to the same faith and credit in every other state, that they ■are entitled to at home.
It was held in D’Arcy v. Ketchum, 11 How. R., 175, that no judgment was protected under that clause of the constitution, where the defendant had not been brought before the court by process or appearance. And in all cases where judgments are sought to be maintained on substituted service, so as to operate as judgments in rem, the law has always required the strictest proof of jurisdiction. There has been some difference in regard to divorces obtained without appearance or service of process — some states refusing to recognize divorces against their citizens, granted by other states where the adverse party was domiciled, and some admitting their validity, where there was such a foreign domicil, in fact, and not sought merely for temporary and fraudulent purposes. There are many cases holding such divorces void, where there has- been actual fraud, if the-defendant in the divorce suit was never reached personally, and never appeared.— Hanover v. Turner, 14 Mass. R., 229; Lyon v. Lyon, 2 Gray, 368; Kerr v. Kerr, 41 N. Y., 272.
But where a court has jurisdiction over such a case as
Accordingly, the doctrine is settled by authority, which is binding, that if the court has jurisdiction over the case as presented by the issue, and the parties appeal’, there is no ground on which a judgment can be lawfully disregarded, and that fraud is no more admissible than any other ground, to assail a judgment, unless in a direct proceeding to have it annulled. — Christmas v. Russell, 5 Wallace R., 290; Hatcher v. Rocheleau, 18 N. Y., 86; Wilcox v. Kassick, 2 Mich. R., 165; Granger v. Clark, 22 Maine, 128; Anderson v. Anderson, 8 Ohio R., 108; Benton v. Burgot, 10 S. & R., 240; Homer v. Fish, 1 Pick. R., 435; McRae v. Mattoon, 13 Pick. R., 53; Nations v. Johnson, 24 How., 203; B. & W. R. R. Co. v. Sparhawk, 1 Allen, 448;
The law will not suffer an absent party to be prejudiced without an opportunity to be heard, and where there has been no personal service or appearance, there is no hardship in holding to the utmost.strictness in complying with all requirements. But when parties appear, it must be presumed they will look after their rights, and, having had. the opportunity to do so, any judgment regularly obtained must stand as binding them botli. There are many cases where the right to implead parties depends on residence, or on some other peculiar qualification, but no authority will permit a judgment to be impeached, on the ground of any want of such qualification. No court of the United States, for example, had any jurisdiction over ordinary controversies between citizens of the same state, or between any but aliens and citizens, or citizens of different states, and a judgment will be reversed on error, where the jurisdictional facts are not averred. — Jaclcson v. Ashton, 8 Pet. R., 143. But the question of citizenship cannot be raised in any collateral proceeding, or in any way, except by a regular objection in the ordinary course.—Erwin v. Lowry, 7 How., 172; Wickliffe v. Owings, 17 How., 47.
A citizen of another state cannot be bound to regard state insolvent proceedings, but if he appears, and makes himself a party to them, he is bound as fully as if he had been a citizen of the same state.—Clay v. Smith, 3 Peters, 411. So, where none but “traders” are subject to such laws, and there is an adjudication, that concludes all further inquiry.—Vanquelin v. Bouard, 15 C. B. (N. S.),
We are bound to apply to such cases the same rules which1 we would apply to judgments and decrees passed by our own courts. And it would certainly be a novelty if a divorce, regular on its face, and granted by one of our own courts, could be attacked collaterally, by denying the residence of the parties averred in the proceedings. The law of Indiana now requires the courts to look vigilantly after the rights of all parties in divorce cases, and does not permit the residence to be proved, as formerly, by an ex parte showing.—Scott v. Scott, 17 Ind., 309; Jenness v. Jenness, 24 Ind., 355. It is quite as stringent as our own law, in all jurisdictional and substantial requirements, and the cause of action, in the divorce suit before us, is the -same under the laws of both states. If there is any difficulty in the matter, it arises out of carelessness in the administration of the law, which, while a source of scandal, does not deprive a judgment of its constitutional and legal force, and will not permit us to disregard it.
It cannot well be questioned, that if this decree binds both
We have no statute punishing parties for the oifense of leaving the state, or resorting to foreign tribunals, for' the purpose of' obtaining divorces, as they have in Massachusetts, and our statutes render it lawful for all persons-to marry whose former marriage shall have been dissolved.-f-2 Comp. L., § 3208. In the absence of any legislative policy to the contrary, there seems to be no method of reaching foreign divorces where both parties have appeared, without opening a door to impeach any judgment of a sister state, by denying facts adjudicated. And the consequences to innocent parties who have married divorced persons, are too serious to render any such course proper as an exceptional one. It is possible, by legislation, to punish any class of frauds, criminally, but it is not proper, in order to. punish parties, although they may very richly deserve it, to disregard the elementary principles of jurisprudence.
I think the court below erred in its rulings, and that there should be a new trial.