Shafer v. Bushnell

24 Wis. 372 | Wis. | 1869

Cole, J.

It appears to ns that the decree of the district court of Minnesota, dissolving the marriage between Mrs. Shafer and her husband, must be deemed conclusive in this state, in respect to the status, or domestic and social condition, of the wife. That decree was rendered by a court of general jurisdiction, and for a cause and under circumstances which would authorize the courts of this state to dissolve the marriage. Mrs. Sha-fer had her actual, bona fide domicil in Minnesota, and had resided there for a year when she applied for a divorce. It seems that she and her husband had lived separate for three years. It is true, the marriage was solemnized in this state, and the acts of cruelty complained of were committed in this state; and, moreover, the plaintiff was neither personally served nor appeared in the action in Minnesota, and the court only acquired jurisdiction by publication under the statutes of that state. But, notwithstanding all this, we think effect must be given to the decree. For, if Mrs. Shafer had been married in Minnesota, and the acts of cruelty complained of had been committed there, still, if she had afterward removed to this state and resided here a year, the courts of this state would have had jurisdiction to decree a dissolution of the marriage contract upon her application, although her husband had never been a resident of, or served with process in, this state. This was so decided as early as 1852, in the case of Manley v. Manley, 4 Chand. 96. The doctrine of that case came up for review before the supreme court, under its present organization, in 1854, in Hubbell v. Hubbell, 3 Wis. 662; and, while the court expresses its dissatisfaction with the rule in that case, it declined to overrule it, on account of the serious consequences which might follow to the persons and property of citizens of this state from a change in the decisions upon this question. See, also, the case of Gleason v. Gleason, 4 Wis. 64. It seems but the necessary logical consequence of these decisions, to affirm the validity of the judgment of the Minnesota court, rendered for a like cause, under a similar statute, and where jurisdiction was acquired in the same manner. For it would certainly be a most inconsistent, not to say one-sided, position, to assert the right of the courts of this state to dissolve the marriage when one only of the married persons resided here, with reference to causes of divorce occurring while the parties were domiciled in another state, where the other party remains, and then decline to give effect to a judgment of a sister state in a strictly analogous case. It cannot, with any reason, be claimed that this state may fix and determine the status or legal relation of married persons domiciled here — may grant valid ex parte decrees of divorce, releasing such persons from all duties and obligations connected with a former marriage — and yet deny the effect of such decrees when granted by the courts of our sister states. According to the principles of our own decisions, there-* fore, effect must be given to the judgment of the Minnesota court, although the plaintiff had only constructive notice, by publication, of the divorce suit. The judgment roll shows a substantial compliance with the statutes of that state in regard to the service of summons by publication. It is claimed that the plaintiff’s residence in this state was well known to Mrs. Shafer, and that, therefore, the summons and complaint should also have _ been mailed to him. In the affidavit made by Mrs. Sha-fer, for the purpose of obtaining an order of publication in the divorce suit, she states that she had learned from “her parents, residing in Omro, in this state, that the plaintiff had left that place, and no longer resided there, and that “she is entirely ignorant of his place of residence, or the whereabouts of said defendant.” And it appears- from his own testimony, that, during the pend-ency of the divorce suit, he was away in Illinois, canvassing as agent for a New York nursery, although he says his head-quarters for business were at his brother’s store in Omro. We do not think there is any ground for holding that Mrs. Shafer knew where the plaintiff resided when she made the affidavit, or where a copy of the summons and complaint would reach him through the mail.

By the Court. — The judgment of the circuit court is affirmed.