107 N.Y.S. 842 | N.Y. App. Div. | 1907
The facts in this case, which are not disputed, are that the plaintiff and defendant were married in the State of Hew Jersey on the ,20th of May, 1888, and lived together until the fall of 1903, when they separated; that in August, 1905, the defendant commenced an action against the plaintiff for divorce- in the State of Illinois on the ground of abandonment, the defendant alleging in his bill of divorce that he had been an actual resident of the State of Illinois for more than a year prior to the commencement of the proceeding. The plaintiff claims that she was not served with process personally within the State of Illinois; that she had never been domiciled in that State, or that the parties never had a matrimonial domicile there. The plaintiff in this action, however, appeared in the action in the. State of Illinois and interposed an answer verified by her denying the material allegations- of the complaint and filed a cross bill asking for a divorce from the defendant. She then applied for alimony and obtained an tirder from the Illinois court in which the action was pending requiring the defendant in this action, the plaintiff in that, to pay $15 a week alimony. This alimony being in arrears and pending the final' disposition of the action in Illinois, the
It does not seem to be disputed but that at the time of the commencement of the action, and for over one year prior thereto, the complainant in the Illinois action had been a reejdte'nt of the State of Illinois and commenced his action for a divorce in that State in good faith, and that the defendant in that action appeared therein, interposed an answer denying, the allegation of residence, and filed a cross-bill for a divorce. It is a principle of universal application that where a court of general jurisdiction, having jurisdiction over the subject-matter of a controversy, acquires jurisdiction over the person of defendant and a judgment is entered finally determining the controversy, such a judgment becomes an adjudication that is conclusive, not only within the sovereignty in which the court which rendered the judgment is located, but wherever the question thus determined is presented. The binding force of such an adjudication does not depend upon any provision of the Constitution of the United States but upon the general principle of the common law, and this principle has always been recognized and enforced in this State. It is also a general principle that a voluntary appearance in an action is equivalent to personal service of the process within the jurisdiction of the court in which the action is pending¡ This rule
It is necessary to refer to but two or three later cases where this principle has been expressly recognized and enforced. In Kinnier v. Kinnier (45 N. Y. 535) the question presented was as to whether a divorce granted in the State of Illinois was binding upon the parties to the action in which the judgment of divorce was entered. Church, Ch. J., there said: “ If the Illinois judgment was binding upon the parties to it, and if the defendant and her former husband were divorced by that judgment, as between themselves, their marriage was not in force W'hen the plaintiff and defendant were
Counsel for the plaintiff seems to. think that certain late decisions of the Supreme Court of the United States have changed or modified this principle, and cites Atherton v. Atherton (181 U. S. 155) and Andrews v. Andrews (188 id. 14). The only question before the Supreme Court of the United-States in those cases was as to the obligation of the State court under the full faith .and credit provisions of the Federal Constitution (art. 4, § 1) in relation to judgments of sister States. It did not determinó what judgments of sister States the courts of any State would recognize. In Andrews v. Andrews (supra) what was decided was: “A State may forbid the enforcement within its borders of a decree of divorce, procured by its own citizens, who, whilst retaining their domicil in the prohibiting State, have gone into another State to procure, a divorce in fraud of the law of the domicil; ” a decision certainly which cannot affect the power of a State to recognize a divorce granted by the courts of a ■sister State where the court had jurisdiction over the parties to the action in which the judgment was entered. In Haddock v. Haddock (201 U. S. 562) the question presented was in relation to. a judgment entered against a non-resident upon constructive service of process and without acquiring jurisdiction over the person of defendant. The judgment in. that case relied on was based upon the service of process by publication and the defendant had not appeared in the action, and the discussion related solely to a judgment obtained under such circumstances. - In summing up a discussion as to the force of the provisions of the Federal Constitution it is there said: “ It has moreover been decided that where a hona fide domicil has been acquired in a State by either of the parties
It seems to me, therefore, that these decisions of the Supreme Court of the United States have no relation to the question as to the effect which will be given to a decree of divorce of the courts of a sister State, and the principles that are well séttled in this State and have been universally enforced are that such decrees are binding upon the parties where the court granting the decree or judgment had jurisdiction to grant a divorce and obtained jurisdiction over the parties to thé action either by personal service within its jurisdiction or voluntary appearance. It follows, therefore, that upon the conceded facts the decree in the court of Illinois granting to the defendant in this action a divorce from the plaintiff, termi
JFor these reasons no order of arrest should have been granted in the action, and the order appealed from, must be reversed, with ten dollars costs and disbursements, and the motion to vacate the order of arrest granted, with ten dollars costs.
Patterson, P. J., McLaughlin, Clarke and Houghton, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.