State, Ex Rel., v. Agler
| Decision Date | 26 December 1928 |
| Docket Number | 21357 |
| Citation | 119 Ohio St. 484,164 N.E. 524 |
| Parties | The State, Ex Rel. Popovici, Vice Consul Of Roumania, v. Agler Et Al., Judges. |
| Court | Ohio Supreme Court |
Divorce and alimony - Jurisdiction - Defendant a consular representative of foreign government, stationed in Ohio.
Inasmuch as the federal courts have disclaimed altogether any jurisdiction upon the subject of divorce or for the allowance of alimony either as an original proceeding in chancery or as an incident to a divorce, prohibition will not lie to prevent the courts of this state which have jurisdiction of the subject-matter of divorce and alimony from hearing and determining a suit for divorce or alimony or both against a consular representative accredited by a foreign government to the government of the United States and recognized and accepted by the government of the United States, who is stationed in the state of Ohio.
IN PROHIBITION.
The facts are stated in the opinion.
Mr Malcolm Y. Yost, for relator.
Mr Harry Nusbaum, for defendants.
This suit was filed in this court, invoking the original jurisdiction of the court, praying a writ of prohibition to prohibit the defendants from trying a cause pending in the court of common pleas of Stark county, Ohio. The petition recites that Popovici is a vice consul for the kingdom of Roumania, duly accredited by the government of the kingdom of Roumania to the government of the United States, and recognized and accepted by the government of the United States as such vice consul, and that he is stationed by the Roumanian lega- tion at Cleveland, Ohio where he now resides and represents said Roumanian government as vice consul. It further recites that he is an alien and a citizen of the kingdom of Roumama.
It is further recited that on May 26, 1927, Helen Popovici, his wife, filed a suit in the common pleas court of Stark county Ohio, praying divorce and alimony. Relator, as defendant in that cause, objected to the jurisdiction of the court, but the court overruled the objection and made an order for temporary alimony, and, according to the allegations of the petition, will, unless restrained by this court, enforce that order by contempt proceedings, with possible restraint of his liberty. Though it was not alleged in the petition, it was conceded as a fact during the argument of this cause that Helen Popovici was at the time of the marriage a resident of Stark county, Ohio, and that the marriage was contracted and consummated in Canton, Stark county, and that the marriage therefore acquired a legal domicile in that county. The proceedings were regular in all respects and, except for the official position of relator as a vice consul, no question would arise.
Relator claims the protection of Section 2 of Article III of the Constitution of the United States, which provides, in part, as follows:
These are the only provisions found in the Federal Constitution having any bearing upon this subject.
He also invokes the aid of paragraph 8 of Section 256 of the United States Judicial Code (Title 28, Section 371, U. S. Code, Section 1233, U. S. Comp. Stats. of 1918), as amended March 3, 1911, as follows:
In any ordinary action against the accredited representatives of a foreign government, relating to causes over which federal courts have well-recognized jurisdiction, and where they are in fact exercising such jurisdiction, it is not doubted that Section 256 of the Judicial Code, or any other enactment on that subject which Congress has the constitutional authority to enact, would be controlling, and entirely exclude jurisdiction of the state courts. It may be doubted whether Congress would have the power to confer upon the federal courts exclusive jurisdiction, or any jurisdiction, over causes in which the domestic relations are involved. It has been definitely and repeatedly decided by the federal courts that under existing legislation those courts may not entertain jurisdiction over causes affecting the domestic relations. The earliest declaration upon that subject is found in Barber v. Barber, 62 U. S. (21 How.), 582, 16 L.Ed. 226:
"This court disclaims altogether anv Jurisdiction in the courts of the United States upin the subject of divorce or for the allowance of alimony, either as an original proceeding in chancery, or as an incident to a divorce a vinculo, or to one from bed and board."
That case was decided in 1858. There was a divided court, but the members of the court at that time differed only upon the grounds of rejecting the jurisdiction, they being unanimously of the opinion that jurisdiction could not be entertained of that class of cases. In 1882 the Circuit Court of the Southern District of New York, in Johnson v. Johnson, 13 F. 193, remanded of its own motion a divorce case which had been removed to that court from the state court. The Circuit Court of the Northern District of Illinois took similar action in the case of Bowman v. Bowman, 30 F. 849. The same doctrine was applied in the case of In re Burrus, 136 U.S. 586, 10 S. Ct., 850, 34 L.Ed. 500, in which a writ of habeas corpus was applied f or to restore a son to the custody of his father, unlawfully detained by his grandparents. Mr. Justice Miller declared in the opinion (136 U.S. at page 593, 10 S. Ct., 853):
"The whole subject of the domestic, relations of husband and wife, parent and child, belongs to the laws of the states and not to the laws of the United States."
In Simms v. Simms, 175 U.S. 162, 20 S. Ct., 58, 44 L.Ed. 115, the court had under consideration an appeal from a decree of the Supreme Court of the territory of Arizona. While the court in that case entertained jurisdiction of an appeal from the territorial court, Mr. Justice Gray, in the opinion (175 U.S. at page 167, 20 S. Ct., 60), made the following observation:
...
To continue reading
Request your trial