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than the judge of the court to exercise its powers. Judges are chosen in such manner as shall be provided by law; and a stipulation by parties that any other person than the judge shall exercise his functions in their case would be nugatory, even though the judge should vacate his seat for the purposes of the hearing.1
Sometimes jurisdiction of the subject matter will depend upon considerations of locality, either of the thing in dispute or of the parties. At law certain actions are local, and others are transitory. The first can only be tried where the prop- [* 400] erty is which is the subject of the controversy, or in respect to which the controversy has arisen. The United States courts take coguizance of certain causes by reason only of the fact that the parties are residents of different States or countries.? The question of jurisdiction in these cases is sometimes determined by the common law, and sometimes is matter of statutory regulation. But there is a class of cases in respect to which the courts of the several States of the Union are constantly being called upon to exercise authority, and in which, while the jurisdiction is conceded to rest on considerations of locality, there has not, unfortunately, at all times been entire harmony of decision as to what shall confer jurisdiction. We refer now to suits for divorce from the bonds of matrimony.
The courts of one State or country have no general authority to grant divorce, unless for some reason they have control over the particular marriage contract which is sought to be annulled. But what circumstance gives such control ? Is it the fact that the marriage was entered into in such country or State ? Or that the alleged breach of the marriage bond was within that jurisdiction? Or that the parties resided within it either at the time of the marriage or at the time of the offence? Or that the parties now reside in such State or country, though both marriage and offence may have taken place elsewhere? Or must marriage, offence, and residence, all or any two of them, combine to
1 Winchester 0. Ayres, 4 Greene individual may sometimes be treated (Iowa), 104.
as void, when he was not suable in 2 See a case where a judgment of that court or in that manner, notwitha United States court was treated as standing he may have so submitted of no force, because the court had not bimself to the jurisdiction as to be jurisdiction in respect to the plaintiff. personally bound. See Georgia R. R., Vose v. Morton, 4 Cush. 27. As to &c. v. Harris, 5 Geo. 527; Hinchman third persons, a judgment against an v. Town, 10 Mich. 508.
confer the authority? These are questions which have frequently demanded the thoughtful attention of the courts, who have sought to establish a rule at once sound in principle, and that shall protect as far as possible the rights of the parties, one or the other of whom, unfortunately, under the operation of any rule which can be established, it will frequently be found has been the victim of gross injustice. We conceive the true rule to be that the actual, bona fide res
idence of either husband or wife within a State will give (* 401] to that * State authority to determine the status of such
party, and to pass upon any questions affecting his or her continuance in the marriage relation, irrespective of the locality of the marriage, or of any alleged offence; and that any such court in that State as the legislature may have authorized to take cognizance of the subject may lawfully pass upon such questions, and annul the marriage for any cause allowed by the local law. But if a party goes to a jurisdiction other than that of his domicile for the purpose of procuring a divorce, and has residence there for that purpose only, such residence is not bona fide, and does not confer upon the courts of that State or country jurisdiction over the marriage relation, and any decree they may assume to make would be void as to the other party.1
1 There are a number of cases in Chase, 6 Gray, 157, the same ruling which this subject has been consid- was bad as to a foreign divorce, notered. In Inhabitants of Hanover v. withstanding the wife appeared in and Turner, 14 Mass. 227, instructions to defended the foreign suit. In Clark a jury were sustained, that if they v. Clark, 8 N. H. 21, the court rewere satisfied the husband, who had fused a divorce on the ground that been a citizen of Massachusetts, re- the alleged cause of divorce (adultery), moved to Vermont merely for the though committed within the State, purpose of procuring a divorce, and was so committed while the parties that the pretended cause for divorce had their domicile abroad. This dearose, if it ever did arise, in Massa- cision was followed in Greenlaw e. chusetts, and that the wife was never Greenlaw, 12 N. H. 200. The court within the jurisdiction of the court of say: “ If the defendant never had any Vermont, then and in such case the domicile in this State, the libellant decree of divorce which the husband could not come here, bringing with had obtained in Vermont must be her a cause of divorce over which this considered as fraudulently obtained, court had jurisdiction. If at the time and that it could not operate so as of the [alleged offence] the domicile to dissolve the marriage between the of the parties was in Maine, and the parties. See also Vischer v. Vischer, facts furnished no cause for a divorce 12 Barb. 640; and McGiffert v. Mc- there, she could not come here and Giffert, 31 Barb. 69. In Chase v. allege those matters which had already
* But to render the jurisdiction of a court effectual in [* 402] any case, it is necessary that the thing in controversy, or
occurred, as a ground for a divorce 349; Hollister 0. Hollister, 6 Penn. under the laws of this State. Should St. 449 ; McDermott's Appeal, 8 W. she under such circumstances obtain & S. 251. And they hold also that a decree of divorce here, it must be the injured party in the marriage regarded as a mere nullity elsewhere." relation must seek redress in the In Frary v. Frary, 10 N. H. 61, im- forum of the defendant, unless where portance was attached to the fact such defendant has removed from that the marriage took place in New what was before the common domiHampshire; and it was held that the cile of both. Calvin v. Reed, 35 Penn. court had jurisdiction of the wife's St. 375; Elder v. Reel, 62 Penn. St. application for a divorce, notwith- 308; 8. c. 1 Am. Rep. 414. For cases standing the offence was committed supporting to a greater or less extent in Vermont, but during the time of the doctrine stated in the text, see the wife's residence in New Hamp- · Harding v. Alden, 9 Greenl. 140; shire. See also Kimball v. Kimball, Ditson v. Ditson, 4 R. I. 87; Pawling 13 N. H. 225; Bachelder v. Bachelder, v. Bird's Ex’rs, 13 Johns. 192; Kerr 14 N. H. 380; Payson v. Payson, 34 v. Kerr, 41 N. Y. 272; Harrison v. N. H. 518; Hopkins v. Hopkins, 35 Harrison, 19 Ala. 499; Thompson v. N. H. 474. In Wilcox v. Wilcox, 10 State, 28 Ala. 12; Cooper v. Cooper, Ind. 436, it was held that the resi- 7 Ohio, 594 ; Mansfield v. McIntyre, depce of the libellant at the tiine of 10 Ohio, 28; Smith v. Smith, 4 Greene the application for a divorce was suffi- (Iowa), 266 ; Yates v. Yates, 2 Beascient to confer jurisdiction, and a ley, 280; Maguire v. Maguire, 7 Dana, decree dismissing the bill because the 181 ; Waltz v. Waltz, 18 Ind. 449; cause for divorce arose out of the Hull v. Hull, 2 Strob. Eq. 174; ManState was reversed. And see Tolen ley v. Manley, 4 Chand. 97; Hubbell v. Tolen, 2 Blackf. 407. See also v. Hubbell, 3 Wis. 662 ; Gleason v. Jackson o. Jackson, 1 Johns. 424; Gleason, 4 Wis. 64; Hare v. Hare, 15 Barber v. Root, 10 Mass. 263; Borden Tex. 355. And see Story, Confi. v. Fitch, 15 Johns. 121; Bradshaw v. Laws, $ 230 a; Bishop on Mar. and Heath, 13 Wend. 407. In any of Div. (1st ed.) § 727 et seq. ; Ibid. these cases the question of actual (4th ed.) Vol. II. § 155 et seq.
The residence will be open to inquiry recent cases of Hoffman v. Hoffwherever it becomes important, not- man, 46 N. Y. 30; s. c. 7 Am. Rep. withstanding the record of proceed- 299; Elder v. Reel, 62 Penn. St. 308; ings is in due form, and contains the 8. c. 1 Am. Rep. 414; and People v. affidavit of residence required by the Dawell, 25 Mich. 247, are very expractice. Leith v. Leith, 39 N. H. 20. plicit in declaring that where neither And see McGiffert v. McGiffert, 31 party is domiciled within a particular Barb. 69; Todd v. Kerr, 42 Barb. State, its courts can have no jurisdic317; Hoffman v. Hoffman, 46 N. Y. tion in respect to their marital status, 30; People v. Dawell, 25 Mich. 247. and any decree of divorce made therein The Pennsylvania cases agree with must be nugatory. A number of the those of New Hampshire, in holding cases cited hold that the wife may that a divorce should not be granted have a domicile separate from the unless the cause alleged occurred while husband, and may therefore be entithe complainant had domicile within tled to a divorce, though the husband the State. Dorsey v. Dorsey, 7 Watts, never resided in the State. These the parties interested, be subjected to the process of the court. Certain cases are said to proceed in rem, because they take notice rather of the thing in controversy than of the persons concerned ;
and the process is served upon that which is the object (* 403] of the suit, without * specially noticing the interested
parties; while in other cases the parties themselves are brought before the court by process. Of the first class admiralty proceedings are an illustration; the court acquiring jurisdiction by seizing the vessel or other thing to which the controversy relates. In cases within this class, notice to all concerned is required to be given, either personally or by some species of publication or proclamation; and if not given, the court which had jurisdiction of the property will have none to render judgment.1 Suits at the common law, however, proceed against the parties whose interests are sought to be affected ; and only those persons are concluded by the adjudication who are served with process, or who voluntarily appear.2 Some cases also partake of the nature
cases proceed upon the theory that, diction in divorce suits, no case in the although in general the domicile of books is more full and satisfactory the husband is the domicile of the than that of Ditson ». Ditson, supra, wife, yet that if he be guilty of such which reviews and comments upon a act or dereliction of duty in the rela- number of the cases cited, and partion as entitles her to have it partially ticularly upon the Massachusetts cases or wholly dissolved, she is at liberty of Barber v. Root, 10 Mass. 265; Into establish a separate jurisdictional habitants of Hanover v. Turner, 14 domicile of her own. Ditson v. Dit- Mass. 227 ; Harteau v. Harteau, 14 son, 4 R. I. 87; Harding v. Alden, Pick 181; and Lyon v. Lyon, 2 Gray, 9 Greenl. 140; Maguire v. Maguire, 367. The divorce of one party di7 Dana, 181; Hollister v. Hollister, 6 vorces both. Cooper v. Cooper, 7 Penn. St. 449. The doctrine in New Ohio, 594. And will leave both at York seems to be, that a divorce ob- liberty to enter into new marriage tained in another State, without per- relations, unless the local statute exsonal service of process or appearance pressly forbids the guilty party from of the defendant, is absolutely void. contracting a second marriage. See Vischer v. Vischer, 12 Barb. 640; Commonwealth 0. Putnam, 1 Pick. McGiffert v. McGiffert, 31 Barb. 69; 136; Baker v. People, 2 Hill, 325. Todd v. Kerr, 42 Barb. 317. See 1 Doughty v. Hope, 3 Denio, 594. Cox v. Cox, 19 Ohio, n. s. 502 ; 8. C. See Matter of Empire City Bank, 18 2 Am. Rep. 415. An appearance by N. Y. 199; Nations v. Johnson, 24 defendant afterwards for the purposes How. 204, 205; Blackwell on Tax of a motion to set aside the decree, Titles, 213. which motion was defeated on techni. 2 Jack v. Thompson, 41 Miss. 49. cal grounds, will not affect the ques. As to the right of an attorney to notion. Hoffman v. Hoffman, 46 N. Y. tice of proceedings to disbar him, see 30; s. c. 7 Am. Rep. 299..
notes to pp. *337 and #404. “NoUpon the whole subject of juris- tice of some kind is the vital breath both of proceedings in rem and of personal actions, since, although they proceed by seizing property, they also contemplate the service of process on defendant parties. Of this class are the proceedings by foreign attachment, in which the property of a non-resident or concealed debtor is seized and retained by the officer as security for the satisfaction of any judgment that may be recovered against him, but at the same time process is issued to be served upon the defendant, and which must be served, or some substitute for service had before judgment can be rendered.
In such cases, as well as in divorce suits, it will often happen that the party proceeded against cannot be found in the State, and personal service upon him is therefore impossible, unless it is allowable to make it wherever he may be found abroad. But any such service would be ineffectual. No State has authority to invade the jurisdiction of another, and by service of process compel parties there resident or being to submit their controversies to the determination of its courts; and those courts will consequently be sometimes unable to enforce a jurisdiction which the State possesses in respect to the subjects within its limits, unless * a substituted service is admissible. A substituted [* 404] service is provided by statute for many such cases; generally in the form of a notice, published in the public journals, or posted, as the statute may direct; the mode being chosen with a view to bring it home, if possible, to the knowledge of the party
that animates judicial jurisdiction over Where, however, a statute provides the person. It is the primary element for the taking of a certain security, of the application of the judicatory and authorizes judgment to be renpower. It is of the essence of a cause. dered upon it on motion, without Without it there cannot be parties, process, the party entering into the and without parties there may be the security must be understood to assent form of a sentence, but no judgment to the condition, and to waive process obligating the person.” See Bragg's and consent to judgment. Lewis v. Case, 11 Coke, 99 a; Rex v. Chan- Garrett's Adm’r, 6 Miss. 434; People cellor of Cambridge, 1 Str. 567 ; v. Van Eps, 4 Wend. 390; Chappee Cooper r. Board of Works, 14 C. B. v. Thomas, 5 Mich. 53 ; Gildersleeve N. s. 194; Meade o. Deputy Marshal, 1 0. People, 10 Barb. 35; People v. Brock. 324; Goetcheus v. Mathewson, Lott, 21 Barb. 130; Pratt v. Donovan, 61 N. Y. 420; Underwood v. McVeigh, 10 Wis. 378 ; Murray v. Hoboken 23 Grat. 409 ; McVeigh v. United Land Co., 18 How. 272; Philadelphia States, 11 Wall. 259; Littleton v. v. Commonwealth, 52 Penn. St. 451; Richardson, 34 N. H. 179; Black v. Whitehurst v. Coleen, 53 I. 247. Black, 4 Bradf. Sur. Rep. 205.