O'Dea v. O'Dea

Decision Date22 December 1885
Citation101 N.Y. 23,4 N.E. 110
PartiesO'DEA v. O'DEA.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

It appears by the complaint that the parties intermarried in this state on the thirtieth day of August, 1866, and from that time, until shortly before the commencement of the action in 1880, lived and cohabited together as man and wife. The husband sued to have the marriage contract declared void, and the marriage annulled, upon the ground that at the time it took place a former husband of the defendant was living, and the marriage with him then in full force. The defendant, by answer, denied all the criminatory allegations. The referee before whom the issue was tried found, upon evidence sufficient, if admissible, that in July, 1844, the defendant resided in, and always before that time had been a resident of, Toronto, Canada West, but at that date was married in Lewiston, in this state, to one K., and lived with him as his wife until January 1860, when she left him and returned to Toronto, where she continued to reside until 1865, and he removed from this state ‘to, and became a resident of, Cuyahoga county, in the state of Ohio,’ where, in March, 1864, and after a residence of more than one year, he commenced an action in the court of common pleas of that county ‘for the purpose of obtaining a divorce from the defendant in this action, for the reason, as stated in the petition then filed, that she had been willfully absent from him for three years or more; that a copy of this petition, and of the summons issued thereon, were, on the twenty-fourth of March, 1864, sent by mail to the defendant at Toronto, where she then resided, and were received by her soon after; that by said summons she was required to answer in the action by the ninth day of April, 1864; that a notice of the filing of the petition, and of the purpose thereof, and that said petition would be for hearing at the May term of said court of common pleas, and that depositions would be taken in Toronto at a time and place mentioned, were duly published in a newspaper in said Cuayahoga county; ‘that on the twentieth day of April, 1864, depositions in said action were taken in pursuance of said notice; that the defendant was present when such depositions were taken, but took no part, personally or by counsel, at the taking of the same; that no other service of the process or proceedings in the action was made upon the defendant than is above stated; and that such service, so made, was, according to the laws of the state of Ohio, a legal service upon the defendant, but that she never in any way appeared in said action.’ It also appeared that on the twenty-fourth day of May, 1864, the Ohio court, upon the proofs, found the facts stated in the petition to be true: That the defendant was willfully absent from the petitioner without cause, for more than three years anterior to the filing of the petition, and had at all times remained so willfully absent from him, and therefore it was decreed that the marriage contract alleged in the petition, and theretofore existing between the parties, be and the same was ‘declared annulled, canceled, and void, and no longer binding on the parties,’ and each ‘was restored to the rights and privileges of unmarried persons.’ The referee further found that the defendant afterwards married the plaintiff, and lived with him as above stated. It appeared from uncontradicted evidence that he knew the person he was about to marry had been a wife, and was not a widow; that he also knew of the divorce proceeding during its pendency, and in 1864 was informed of the result, but the referee finds that he had no knowledge of the particular manner or circumstances under which the divorce was obtained;’ and that when the plaintiff and defendant married, K. was living in Ohio, and is still living there. As conclusions of law the learned referee found that the court ‘of common pleas of Cuyahoga county, Ohio, never acquired jurisdiction over the person of the defendant in the proceeding prosecuted in that court, and therefore that the decree made and entered in it was without jurisdiction, and so void and of no effect.’ He directed judgment in favor of the plaintiff, declaring his marriage with the defendant to be illegal and void. After judgment, it was reversed by the general term, and a new trial granted. From that order the plaintiff appeals.

George J. Greenfield, for appellant.

De Lancey Crittenden, for respondent.

PER CURIAM.

We think the Case of Baker, 76 N. Y. 78, is conclusive on the question brought up by this appeal, viz.: Whether the court in the state of Ohio had jurisdiction to try the issue raised by the petition of K., as between him and his wife; she then being a non-resident of Ohio, and never a resident of that state, nor at any time there served with process of the court. There are some differences in the details of the circumstances of the two cases, but we think not enough to lead to any change in the result, nor sufficient to require a reconsideration of the law affecting it. The Baker Case was of great importance, involving, as it did, the liberty of a citizen. It was most fully argued, and we do not perceive that the discussion in the case at bar has developed any new principle, or brought to light any authority which was not then weighed by us. We do not think the question can be more fully investigated. Concerning the result there was, it is true, a dissent by the late learned chief judge, and the opinion recognized the fact that in other states judgments contrary to the authorities followed in this state had been rendered. This conflict of opinion, however much to be regretted, continues, and it yet remains for some ultimate authority to relieve the point from the difficulties now attending it, and determine the civil rights of parties whose relations, as legally defined by different state tribunals, are liable to be regarded on one side of the state line as matrimonial, and on the other side as meretricious.

Adhering, however, to the rule established in this state, a majority of the court are of opinion that the order appealed from should be reversed, and the judgment of the special term affirmed, but without costs.

RUGER, C. J., RAPALLO, ANDREWS, and EARL, JJ., concur.

DANFORTH, J., (dissenting.)

The jurisdiction of the supreme court to grant the relief sought for in this action is purely statutory, (Code, § 1745,) and depends upon the existence of two facts there stated, and in substance repeated in the complaint: (1) That the former husband was living at the time of the marriage in question; and (2) that the marriage between that former husband and the defendant was then in force.

As to the first, there is, upon the evidence, no dispute. The controversy is over the second, and is to be determined as effect is given or denied to the judgment rendered by the Ohio court. In Kinnier v. Kinnier, 45 N. Y. 535, full effect was given to a judgment of divorce granted by a sister state, although for a cause not deemed sufficient in this state; while in People v. Baker, 76 N. Y. 82, it did not avail the defendantwho set it up. In the Kinnier Case the plaintiff was the second husband, and unsuccessfully invoked the judgment of the courts of this state to annul his marriage. There both parties to the divorce proceedings were in the state when they were had, and parties to the suit. In the Baker Case the defendant was served with process by publication only, and his second marriage was held to be bigamous. The present suit was commenced soon after the determination of the Baker Case, and, as stated on the argument, was suggested by it. The learned counsel for the appellant now relies upon it as furnishing a decisive answer to the decision of the court below.

The judgment in Baker's Case, 76 N. Y. 78, was in assumed compliance with the rule theretofore uniformly laid down by the courts of this state, and is to be followed as a precedent in similar cases, but it should be taken in connection with the facts which seemed to warrant it, and, so taking it, I feel at liberty to dissent from the conclusion of the majority of the court in the one at bar, and more readily because a limitation to the doctrine appears to have been in the mind of the court in that instance. In the language of the learned judge, whose opinion declared the views of his brethren: ‘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 here 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 this state? We assume, in putting this proposition,’ says the learned judge, ‘that the defendant in error was in the situation therein stated. We think,’ he adds, ‘that it may properly be thus assumed.’ And that importance was attached to this assumed situation of Baker is apparent, not only from the care taken in stating the proposition, but by the argument by which it is sustained in the face of some evidence to the contrary.

It appears, then, in the Baker Case, (1) that the person whose rights the court in Ohio sought to affect is not only characterizedas being at the time a citizen of this state, but as one actually abiding here during the judicial proceedings which were aimed at him. In the case at bar the defendant in the divorce suit was neither domiciled nor a resident in this state, nor was she within its borders during the pendency of the proceedings therein. She was either domiciled in Ohio, because her husband's domicile was there, or she was domiciled in Canada, to which place she went, and where she resided. The latter place it is said was her domicile of choice. Assuming that to be so,-that her husband's domicile was in Ohio, and her own in Canada,-the question is...

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