188 U.S. 291 (1903), 109, Mutual Life Insurance Company v. McGrew

Docket Nº:No. 109
Citation:188 U.S. 291, 23 S.Ct. 375, 47 L.Ed. 480
Party Name:Mutual Life Insurance Company v. McGrew
Case Date:February 23, 1903
Court:United States Supreme Court
 
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188 U.S. 291 (1903)

23 S.Ct. 375, 47 L.Ed. 480

Mutual Life Insurance Company

v.

McGrew

No. 109

United States Supreme Court

February 23, 1903

Argued January 15-16, 1902

ERROR TO THE SUPREME COURT

OF THE STATE OF CALIFORNIA

Syllabus

To maintain a writ of error asserted under the third of the classes of cases enumerated in section 709, Rev.Stat., the right, title, privilege or immunity relied on must not only be specially set up or claimed, but (1) at the proper time, which is in the trial court whenever that is required by the state practice, as it is in California, and (2) in the proper way, by pleading, motion, exception, or other action, part or being made part, of the record, showing that the claim was presented to the court.

Where it is claimed that the decision of a state court was against a right, title, or immunity claimed under a treaty between the United States and a foreign country and no claim under the treaty was made in the trial court and it is a rule of practice of the highest court of the state that it will not pass on questions raised for the first time in that court and which might and should have been raised in the trial court, the writ of error will be dismissed.

The mere pleading of a decree in a foreign country or of a statute of such country and the construction of the same by the courts thereof do not amount to specifically asserting rights under a treaty with that country.

Judicial knowledge cannot be resorted to to raise controversies not presented by the record.

The raising of a point in this Court as to the faith and credit which should be given judicial proceedings of a foreign country, which ceased to be foreign before judgment was rendered in a state supreme court, but was not brought to the attention of that court, comes too late.

This is a writ of error to revise the judgment of the Supreme Court of the State of California, affirming a judgment of the Superior Court of the City and County of San Francisco in favor of Alphonsine McGrew and against the Mutual Life Insurance Company of New York. 132 Cal. 85.

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The action was brought on a policy of insurance payable to Alphonsine C. McGrew, and in the amended answer to the complaint, the recovery of a decree of divorce was averred, and it was alleged:

That, under and by virtue of the Hawaiian law in force at the time said decree of divorce was granted and now in force, it is provided:

When a divorce is decreed for the adultery or other offense amounting thereto, of the wife, the husband shall hold her personal estate forever, and he shall hold her real estate so long as they shall live, and if he shall survive her, and there shall be issue of the marriage born alive, he shall hold her real estate for the term of his own life, as a tenant by the curtsey; provided that the court may make such reasonable provision for the divorced wife out of any real estate that may have belonged to her, as it may deem proper.

That under and by virtue of the foregoing provision of law, and decree of divorce, all rights of the said Alphonsine C. McGrew in and to said policy of insurance did pass to the said Henri Golden McGrew and become his absolute property, free and clear of any claims of the said Alphonsine C. McGrew, plaintiff herein, whatsoever.

The amended answer also averred that, after McGrew's death, one Carter was duly appointed in Hawaii administrator of his estate, and as such administrator, he commenced suit against the insurance company in a circuit court of Hawaii on the policy of insurance; recovered judgment October 15, 1895, for the full amount; that the Supreme Court of Hawaii affirmed the judgment, and subsequently denied an application for rehearing, and that the judgment was thereafter paid.

The trial court made findings of fact as follows:

1. On the 14th day of September, 1892, this defendant made, executed, and delivered to Henri G. McGrew, a certain policy of insurance, being the same policy mentioned in the complaint herein, wherein and whereby the said defendant promised and agreed to pay unto the plaintiff, Alphonsine McGrew, the sum of five thousand dollars ($5,000.00), upon the death of the said Henri G. McGrew, during the continuance of said policy of insurance, provided said Alphonsine McGrew were living at the time of the death of said Henri G. McGrew, and upon

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acceptance of satisfactory proof of the death of said Henri G. McGrew, during the continuance of said policy.

2. Henri G. McGrew died on the 22d day of October 1894, in Honolulu, Hawaiian Islands, and said plaintiff survived him.

3. Said Henri G. McGrew, upon said 14th day of September, 1892, and continuously and up to the time of his death, was a resident of, and domiciled in, the Hawaiian Islands.

4. On the 9th day of February, 1895, plaintiff presented to said defendant satisfactory proof of the death of said Henri G. McGrew, and demanded of said defendant the payment of the sum of five thousand ($5,000.00) dollars, under and in accordance with the terms of said policy of insurance, but defendant has never paid the same, or any part thereof.

5. Subsequent to the said 14th day of September, 1892, and prior to the 8th day of February, 1894, the said Henri G. McGrew became of unsound mind, and thereafter, upon due proceedings had, Charles L. Carter, residing in the City of Honolulu, was duly appointed the guardian of the person and estate of said Henri G. McGrew, an incompetent person, and continued to hold such office of guardian at the time of the filing of the libel of divorce, and the proceedings thereunder hereinafter mentioned.

6. On the 8th day of February, in the year 1894, Charles L. Carter, as guardian and on behalf of Henri G. McGrew, an incompetent person, filed in the Circuit Court of the First Judicial Circuit of the Republic of Hawaii, which said court has jurisdiction over said parties and over libels for divorce, a libel praying for a divorce from said plaintiff on the ground of her adultery, and thereafter, and on the 11th day of April, 1894, this plaintiff, being then a resident of, and domiciled in, said Hawaiian Islands, appeared in said action and contested the same.

7. On the 23d day of August, 1894, a decision was rendered, and on the 24th day of August, 1894, a decree was signed in said cause by the said circuit court dissolving the bonds of matrimony theretofore existing between said Henri G. McGrew and this plaintiff, upon the ground of the adultery of this plaintiff.

8. On the 5th day of April, 1894, this plaintiff left the Hawaiian

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Islands with the intention of not returning to said islands, but of coming to the State of California and of making her home in, and permanently residing in, said state. And thereafter, and in due course of her voyage from the Hawaiian Islands and in said month of [23 S.Ct. 377] April, this plaintiff arrived in the State of California, and with said intention above mentioned, thereupon took up her residence in, and made her home in, said state, and with said intention has ever...

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