160 N.Y.S. 642 | N.Y. Sup. Ct. | 1916
This is a motion to modify an order made in an action for separation granting an allowance for alimony to the defendant. The motion is based upon, the ground that since the commencement of the action the plaintiff: has obtained a divorce from the defendant in the state of New Mexico. The merits of this position depend upon the validity of the New Mexico divorce. If it is binding in this state the order for alimony should be vacated.
The courts of this state may inquire into the validity of the judgment of another state as to jurisdiction (Andrews v. Andrews, 188 U. S. 14; Hunt v. Hunt, 72 N. Y. 217), and the effect of the judgment in this state depends upon whether or not the foreign court has jurisdiction of the person of the defendant. Jurisdiction of the subject matter in this case appears from the record. The defendant, however, was served by publication which did not operate to give the New Mexico courts jurisdiction of the person of the defendant. But after the rendition of the judgment she moved to vacate it for want of jurisdiction and also offered to submit her defense upon the merits. The judgment upon her motion was vacated and she then demurred to the complaint. An appeal, however, was taken to the Supreme Court and that court reversed the order of the court below vacating and setting aside the judgment and held that the service made upon the defendant was regular but that the defendant was late in making her motion.
The New Mexico court in its opinion said that by her appearance she had precluded herself from claiming that the judgment was void for want of jurisdiction of her person and that she had in effect consented that the court have jurisdiction of the case. The effect of her application to set aside the judgment was to confer jurisdiction upon the court to review the judgment and
The effect of the decision of the court was to validate the judgment which had been entered upon substituted service, but the appearance of the defendant for the purpose of moving to set aside the judgment did not have a retrospective effect so as to give the judgment the effect of a judgment rendered upon her personal appearance. Nor did the decision of the court have that effect. It merely confirmed the judgment that had been rendered and did not change it from a judgment rendered upon substituted service to a judgment rendered upon personal service. The effect of the two judgments is quite different.
It would be unwise to hold that .a non-resident may not attack a judgment rendered against her in another state without thereby subjecting herself to the liability of a personal judgment in a case where property is attached, or in case of an action for divorce to the danger of changing the judgment from one which is effective only within the state to one binding in the state of the defendant’s residence. A motion amounting to a general appearance after judgment may have the effect of correcting defects in the proceedings leading up to a judgment but cannot confer jurisdiction upon the court over the subject matter of the litigation or the person involved if such jurisdiction did not exist when the action was instituted and the judgment rendered. Mayfield v. Bennett, 48 Iowa, 194.
I. have examined many of the authorities in other
The New Mexico statutes provide that a civil action is commenced by the filing of a complaint and that within a year after the complaint is filed the defendant may waive the issuance of a summons in writing or by appearing and answering or demurring. § 4089, When substituted service is made the defendant is required to appear within twenty days after the completion thereof. § 4099. In this state the Code of Civil Procedure provides that the defendant’s appearance “ must be made by serving upon the plaintiff’s attorney, within twenty days after service of the summons, exclusive of the day of service, a notice of appearance, or a copy of the demurrer or of the answer.” § 421. No other method of appearance is provided for in this state. Under this language and the provisions of local statutes regulating the procedure in certain inferior courts it has been held that a motion by a defendant to vacate a judgment does not cure a want of proper service. Bell v. Good, 19 N. Y. Supp. 693; Mehrbach v. Partridge, 9 Misc. Rep. 209. It has also been held that the appearance of a defendant for the purpose of appealing from a default judgment gave the trial court no jurisdiction over the defendant. Jacobs v. Atlas Const. Co., 119 N. Y. Supp. 168. The appearance of a defendant, resident or non-resident, in an action before judgment is of course readily distinguishable from his appearance after judgment for the purpose of ques
The motion should therefore be denied with ten dollars costs.
Motion denied.