123 N.Y.S. 482 | N.Y. App. Div. | 1910
This action was brought upon a judgment alleged to have been recovered by the plaintiff against the defendant in the Circuit Court of the city of St. Louis, Mo., on the 22d day of May, 1901. It was tried at Trial Term, a jury having been waived, and resulted in a
The court found as a fact that for more than a year prior to the 1st of May, 1898, she had lived separate and apart from her husband at her own home in Tuxedo, N. Y., during which time the husband had not contributed anything towards her support; that she was not" in St. Louis at the time the summons is- alleged to have been served upon her —- having left there on the first of May — and has not since resided there, but has continued to live separate and apart from ■ her husband. He also found that the attorney who
The appellant contends that notwithstanding the above findings — which there is an abundance of evidence to sustain — nevertheless, the defendant cannot attack the validity of the judgment so sought to be enforced in this State by showing that the courts of Missouri never obtained jurisdiction over her; in other words, his claim is that her husband was domiciled in and a resident of St. Louis, Mo., and, therefore, that place was, prima facie, her domicile and residence, in the absence of proof showing she was entitled to a divorce and for that purpose obtained á domicile separate and apart from him. , The contention is based upon an erroneous view as to the force and effect which this State will give to a judgment obtained in another State when sought to be here enforced. A judgment of a court of general jurisdiction of another State is entitled to the benefit of the presumption of jurisdiction which exists in favor of judgments of our own courts, but the want of jurisdiction “ may be shown by extrinsic evidence, and evén a recital in the judgment record that defendant was served or appeared by attorney or of any other jurisdictional fact is not conclusive and may be contradicted by extrinsic evidence.” (Woodward v. Mutual Reserve Life Insurance Co., 178 N. Y. 485; Hunt v. Hunt, 72 id. 217.) A personal judgment obtained in the courts of another State against a resident of this State, where he has not appeared or authorized an appearance in the action, is void and cannot be here enforced. There must be either personal service of process or an appearance by the defendant to confer jurisdiction. One or the other of these facts must be proved to enable our courts to take jurisdiction. This is the distinction between an action in personam and an action in rem. In an action in rem, a. valid judgment maybe obtained so far as it affects the res without personal service of process, while in an action to recover a judgment in personam, process must be personally served or there must be a personal or authorized appearance in the action. (People v. Baker, 76 N. Y. 78; Lynde v. Lynde, 162 id. 405.) Otherwise, jurisdiction of the person is not obtained, the lack of which may be interposed when the judgment recovered is sought to be enforced or when any benefit is claimed under it. (Matter of Kimball, 155 N. Y. 62.)
The judgment appealed from, therefore, is affirmed, with costs.
Ingraham, P. J., Laughlin, Miller and Dowling, JJ., concurred.
Judgment affirmed, with costs.