58 Minn. 279 | Minn. | 1894
The plaintiff brought an action for divorce against her former husband, Charles E. Thurston, and service was had on him personally in the state of Washington, pursuant to 1878 G-. S. ch. 62, § 12. He never appeared or answered in the action. She joined in the same action the defendants Henry and Frank W. Rothschild, and alleged in her complaint that they were partners in business with her said husband, and had in their hands property of his invested in the partnership business, and that her said husband was the owner of certain real estate described in the complaint, and that during the month of May, 1891, he contemplated deserting her, and commencing a suit against her for divorce, and procured her, in ignorance thereof, to join with him in deeds of conveyance of said real estate to said Henry Rothschild, pursuant to a fraudulent conspiracy between him and said Henry, whereby it was agreed that said Henry was to hold said real estate for the sole use and benefit of her said husband, for the purpose of depriving her of her interest and rights therein, and of any claim for alimony, support, and maintenance which she might make against her husband; and she prayed that she be granted a divorce, and be awarded the expenses of the suit, temporary and permanent alimony, support and maintenance,
The defendants Henry and Frank W. Rothschild answered separately, and Henry, among other things, answered that on December 10,1892, said Charles E. Thurston, being then, and for more than one year prior thereto, a bona 'fide resident of the state of Washington, commenced an action for divorce in the superior court of Snohomish county, in that state, and such proceedings were thereupon had that on February 23, 1893, judgment was duly entered in his favor, adjudging that the marriage between him and her be dissolved, and that they be divorced.
On the trial of this action, before the court without a jury, by agreement of the parties and consent of the court, the question whether or not such Washington divorce was valid and binding on her was to be first tried, and thereupon the court was to decide whether or not, in any event, she could maintain this action against the Rothschilds, reserving the other issues to be tried afterwards.
On the evidence then introduced, the court found that plaintiff and defendant Thurston were married in 1869, removed to this state in 1886, and resided here until the fall of 1892, when he removed to the state of Washington, and in a couple of months afterwards, on December 10, 1892, commenced said divorce action, stating in his sworn complaint that he was then a resident of that state, and had been for ore year immediately prior thereto1; the summons was served on her by publication, and on the hearing that court found the allegations of that complaint to be true, and ordered the judgment which was entered as aforesaid; that the law of Washington requires the plaintiff in a divorce suit to be a resident of, and to have resided in, that state, for one year immediately before filing the complaint in the action; that in fact he had not then resided there one year, but only since September or October, 1892; that in other respects the action was prosecuted according to the law of that state; and that she never was in that state, but remained in this, did not appear in that action, and had no knowledge or actual notice thereof. •
Thereupon the court found that that judgment was valid, and divorced the parties, and for that reason she is not entitled to any relief as against the Rothschilds, and ordered judgment against her
1. The husband, at the time he commenced that action, was actually a resident of Washington, and for that reason we are of the opinion that the judgment was valid, and divorced the parties, though he had then residéd there only a couple of months, while the statute of that state required a year’s residence. This did not go to the jurisdiction, but the judgment is on the same footing as any other judgment obtained by false testimony. In this respect it is not like the case of State v. Armington, 25 Minn. 29, where both parties were residents of this state when the pretended action for divorce was commenced elsewhere, and the pretended judgment obtained. See 2 Bish. Mar. & Div. (6th Ed.) § 155, and following sections.
2. The action for divorce in Washington was in the nature of a proceeding in rem. It seized nothing but the marriage status. The inly reason why the seizure of that was sufficiently complete to .give jurisdiction to condemn and destroy it, is because it cannot be severed as to one without being severed as to both; one cannot remain married when the other becomes single. The court took juris•diction of nothing else but the marriage status. 2 Bish. Mar. & Div. §§ 169, 170. Nothing else was seized. No property was seized or <came in question, and the property in this state could not be so seized.
Neither the doctrine of res judicata nor estoppel applies to the ■parties concerned or interested in a proceeding in rem only so far as it has regard for the thing seized and condemned by the judgment.
Thus A., claiming the right to the possession of a wagon which B. withholds from him, and finding all of it but the tongue in a state where B. does not reside, brings replevin, and on constructive service on B. obtains judgment for the possession of that part of the wagon. In a subsequent suit between him and B. for the possession of the tongue, B. cannot plead that A. has split his cause of action, and A. cannot plead the adjudication in the first suit. On the contrary, all questions concerning the rights of the parties as to the tongue are res nova. See Plummer v. Hatton, 51 Minn. 181, (53
It is not the policy of a court of equity, or any other court which has complete jurisdiction of the parties and of the subject-matter, to do justice by halves, or to permit a party to present an entire controversy by piecemeal, when there is no obstacle to its being all presented at once, or to a full and complete determination of the whole controversy in one proceeding. In such a case it is generally held that when the party thus splits an entire controversy, and prosecutes only a part of it, on the determination thereof the whole is res judicata. But, as we have seen, this doctrine of splitting the cause of action has no application when a part of the controversy is thus disposed of in a proceeding in rem, at least when such proceeding covers all of the res within the jurisdiction, and the rest of the res is a substantive part of the original controversy. The claim for alimony in this case is a substantive part of the original controversy. It is not something which is created by, or merely grew out of, the divorce suit, such as the costs and attorneys’ fees incurred in prosecuting that suit.
Alimony is in many states so far a right independent of divorce that, on general equity principles, it is allowed during marriage, and without decreeing either divorce or separation, when the parties are living apart, and there is sufficient ground for decreeing either divorce or sejiaration. See 2 Bish. Mar. & Div. §§ 354, 355, and cases cited.
The question of alimony is not res judicata by reason of the judgment of divorce in the proceeding in rem. Neither does that judgment estop this plaintiff from showing that Thurston had committed acts which entitled her to a divorce and to alimony, and that she had committed no acts which forfeited her right to alimony, or which entitled him to a divorce, if that is material. That judgment establishes nothing except that the marriage relation has been condemned and destroyed by a judgment of divorce; all other questions are res nova.
There are cases, such as Cook v. Cook, 56 Wis. 195, (14 N. W. 33, 443,) and Wright v. Wright, 24 Mich. 180, where it is held that in such a case as this a second divorce should be granted in the state
3. If the property of Thurston .in this state is in the possession of the Rothschilds, or the title to it is in the name of one or both of them, obtaining jurisdiction of them is a sufficient seizure of the property by the court to enable it to proceed against the property by' constructive service on Thurston.
4. It is urged by the Rothschilds that there is- no constructive service as to Thurston; that the service on him was personal service out of the state, under 1878 G-. S. ch. 62, § 12, which .applies only in divorce cases; and that if this suit can be maintained only, for alimony, and not for divorce, there is no service as to Thurston, either actual or constructive, and that he is a necessary party. Conceding this to be true, it amounts at most to a defect of parties defendant by reason of the failure to serve a necessary party, and if the defendants served fail to object before trial, in some proper manner, they waive it.
o. We are also of the opinion that on the pleadings in this action the plaintiff was entitled to proceed for alimony alone. The allegation and proof by the Rothschilds of the Washington divorce constituted only a partial defense to plaintiff’s action, and are not a defense to her claim for alimony.
The judgment appealed from should be reversed. So ordered.
(Opinion published 59 N. W. 1017.)
