As we look at this case, it presents this question : Can a court, in another State, adjudge to be dissolved and at an end, the matrimonial relation of a citizen of this State, domiciled and actually abiding hero throughout the pendency of the judicial proceedings there, without a voluntary appearance by him therein, and with no actual notice to him thereof, and without personal service of process on him in that State.
We assume, in putting this proposition, that the defendant in error was in the situation therein stated. We think that it may properly be thus assumed. It is true, that the first which is disclosed of the defendant in error, by the error-book, shows him in another State, in the act of marriage with Sallio West, the other party in the judicial proceedings there held. It does not appear where his domicile then was, nor where it had been. After the marriage, however, the persons tlien married, resided at Rochester, in this State, at a time prior to the commencement of those judicial proceedings ; and he continued to reside in that city until in 1875, and after thp final judgment therein was rendered. We look in vain in the error-book for any exception, proposition or suggestion, which presents or indicates, that the case was tried at the sessions, upon the theory or contention that the defendant in error was domiciled in Ohio, or temporarily abiding there, at any time during the pendency of the judicial proceedings in that State. -
We come back then to the question we have above stated. We are ready to say, that as the law of this State has been declared by its courts, that question must be answered in the negative. The principle declared in the opinions has been uniform. Such is the utterance in
Borden
v.
Fitch
(15 J. R., 121);
Bradshaw
v. Heath (
We must and will abide by the law of this State, as thus declared, unless the adjudications in which it has been set forth have been authoritatively overruled in that regard. As this is a question of Federal cognizance, we ought to inquire whether the national judiciary has declared anything inconsistent therewith.
Cheever
v.
Wilson,
It is said, that a judicial proceeding to touch the matrimonial relation, of a citizen of a State, whether the other
*85
party to that relation is or is hot also a citizen, is a proceeding
in
rem, or, as it is more gingerly put,
quasi in rem.
But it was never heard, that the courts of one State can affect in another State the
rem
there, not subjected to their process, and over the person of the owner of which no jurisdiction has been got. Now, if the matrimonial relation of the one party is the
res
in one State, is not the matrimonial relation of the other party a
res
in another State ? Take the case of a trust, the subject of which is lands in several States, the trustees all living in one State. Doubtless the courts of a State in which the trustees did not live and never went, but in which were some of the trust lands, could proceed
in rem
and" render a judgment without personal service of process, which would determine there the invalidity of the trust and affect the possession and title of the lands within the jurisdiction of those courts ; but it would not be contended, that the judgment Avould operate upon the trustees or upon the trust lands, in other States, so as to affect the title, or the possession, in those States. It could operate only on the
rem
upon Avhich the process of those courts could lay hold. And Avby is not the matrimonial relation of a citizen of Ncav York, as it exists in that State, if it is a
res,
as much exempt from the effect of such a judgment as lands . in that State, and the trust under AArhich they may be held ? Is not any other relation of mankind as much a
res
for the touch and adjudication of courts as that of husband and Avife ? Take the relation of a minor orphan to its guardian, or to those entitled by laAV to be its guardians. That is a
status,
in kind as the matrimonial relation. The courts of one State may act and appoint a guardian for such a child, if it is Avithin"their territorial jurisdiction, and remains there; but the appointment is not operative
per se
in another State, into which the child goes.
(Woodworth
v.
Spring,
*87 We are not, therefore, satisfied with the doctrine that rests the validity of such judicial proceedings -upon the right and sovereign power of a State to determine the status of its own citizens, and because it may not otherwise effectually establish it, asserts the power to adjudge upon important rights, without hearing the party to be affected, and without giving him the notice which is required by the principles of natural justice, he being all the while beyond its jurisdiction.
Besides, a just consideration of what is a proceeding in rem, and of the effect of a judgment therein, shows that the latter does not reach so far as is contended for it. It is a proceeding in rem merely. The judgment therein is not usually a ground of action in personam in another jurisdiction, for¡ as a proceeding in personam, or as giving foundation for one, the court gets no jurisdiction. (Pauling v. Bird’s Exrs., 13 J. R., 192.) How then, upon such basis, can the judgment be brought here and made the foundation of an action against one personally; and if not a means of offence in personam, how a means of defence to the person, when sought to be held for personal acts, in violation of the laws of his allegiance ?
The consequences of such want of harmony in polity and proceeding, wo have adverted to. . The extent of them ought to bring in some legislative remedy. It is not for the courts to disregard general and essential principles, so as to give palliation. Indeed, it is better, by an adherence to the -policy and law of our own jurisdiction, to make the clash the more and the earlier known and felt, so that the sooner may there be an authoritative determination of the conflict.
It is urged upon us that our State cannot with good grace hold invalid this judgment of a court of Ohio, when our own Code provided, at the time of the rendition of it, for the giving of judgment of divorce against a non-resident, by like substituted service. It is true that, until the new Code of Procedure, such had been the case. (2 R. L., 197, § 1; 1 id., 489, § 9; 2 R. S., 144, § 38; id., 185; id., 187, § 134; Laws of 1862, chap. 246, § 1; Old Code, § 135; but see *88 New Code, § 438, sub. 4.) This is but to say that, on the principle of the comity of States, we should give effect to' this judgment. But this principle is not applied, when the laws and judicial acts of another State, are contrary to our own public policy, or to abstract justice or pure morals. The policy of this State always has been, that there may of right be but one sufficient cause for a divorce a vinculo ; and that policy has been upheld, with strenuous effort, against persistent struggles of individuals to vitiate and change it. And though it is lightly, we must think, sometimes said that it is but a technicality, that there must be personal notice and chanco to be heard, to make a valid judgment affecting personal rights and conditions, we cannot but estimate the principle as of too fundamental and of too grave importance, not to be shielded by the judiciary, as often as it is in peril.
We are aware that there are decisions of the courts of sister States to the contrary of the authorities in this State. They arc ably expressed; they are honestly conceived. They are, however, on one side of a judicial controversy, the dividing line whereof is well marked, and is not lately drawn. It would not be .profitable to review and discuss-them. They are prevalent within the jurisdictions in which they have been uttered, and we cannot expect to change them there. They are in opposition to the judgments of our own courts, which we must respect, and with which our reason accords. It remains for the Supreme Court of the United States, as the final arbiter, to determine how far a-judgment rendered in such a case, upon such substituted service of process, shall bo operative, wdthout the territorial jurisdiction of the tribunal giving it.
There is an exception still to be noticed. The court, in charging the jury, stated to them that, if the divorce had been obtained under the laws of this State, though the defendant in error would not have been guilty of the crime of bigamy, yet he would have been guilty of a misdemeanor, and that that was a pertinent consideration for them. We do not understand that this was meant for an instruction *89 that they could convict him of the misdemeanor, if they did not find that he was guilty oí" the higher offence. The charge is to be taken in connection with the reception in evidence of the Ohio record, on the question of his intent. As bearing merely upon his guilty or innocent purpose, it ivas not inappropriate for the jury to consider that, though a man, from whom his wife has been divorced a vinculo, in this State may not, by marrying again, incur the penalties for bigamy, he does violate the decree, which forbids to him another marriage, so long as she lives.
We are of the opinion that the judgment of the General Term should be reversed, and that of the Sessions be affirmed.
All concur, except Church, Ch. J., dissenting.
Judgment accordingly.