Colvin v. Reed

• Decision Date: 14 November 1867
• Parties: Colvin <I>versus</I> Reed.
• Court: Pennsylvania Supreme Court

55 Pa. 375

Colvin versus Reed.

Supreme Court of Pennsylvania.

May 20, 1867.

November 14, 1867.

May 20th 1867.

Before WOODWARD, C. J., THOMPSON and AGNEW, JJ. STRONG and READ, JJ., absent

Error to the Court of Common Pleas of Bedford county.

J. Cessna, for plaintiff in error, cited Steel v. Smith, 7 W. & S. 451; Rogers v. Burns, 3 Casey 525; D'Arcy v. Ketchum, 11 How. 165; 2 Bishop M. & D. 141; Jackson v. Jackson, 1 Johns. 424; Pawling v. Bird's Ex'rs., 13 Id. 192; Bender v. Fitch, 15 Id. 151; Barber v. Root, 10 Mass. 262.

J. P. Reed, defendant in error, p. p., cited 2 Black. 128; 2 T. & H. Pr. 216; Flory v. Becker, 1 Barr 470; Miltimore v. Miltimore, 4 Watts 150; Act of Congress of May 26th 1790, 1 Brightly's Dig. 265, pl. 9; Baker v. Field, 2 Yeates 532; 1 Peters's C. C. 74, 155; Fritz v. Fisher, 3 Am. Law Reg. 243; 2 Bishop M. & D. 141; Hood v. Hood, 11 Allen, 196.

The opinion of the court was delivered, November 14th 1867, by AGNEW, J.

The question in the court below was, whether the dower of Susanna Taylor, wife of James Taylor, in his property in this state, was extinguished by a divorce obtained by him in the District Court of Black Hawk county, in the state of Iowa. The case stated is badly made up, but from the record and testimony of the divorce, we ascertain the following facts: James and Susanna Taylor, at the time of their marriage, in May 1857, were citizens of Pennsylvania. Shortly after their marriage they made a visit to Iowa and returned, Mrs. Taylor not being pleased with the country. After their return, she declared to him her intention not to live with him, and refunded to him $40, his bill for the expenses of her journey to Iowa. She remained at her brother's, in Allegheny City, and he went back to Bedford county, in October, and remained there till May 1858, when he sold his farm to the defendant, and removed to Iowa, leaving his wife in Pennsylvania.

In 1860 Taylor, then being a bonâ fide citizen of Iowa, commenced proceedings for a divorce a vinculo, and, after due publication of notice, according to the laws of Iowa, a divorce was decreed, on the ground of the desertion alleged to have taken place in Pennsylvania. Susanna Taylor had no actual notice, and at the time was a resident citizen of this state, never having left it.

The question on this state of facts is, whether the Iowa court had jurisdiction to declare the divorce of Mrs. Taylor so as to discharge the lands of her husband in Pennsylvania from her right of dower?

Neither the person nor the property of Mrs. Taylor being within the power of the Iowa court, no extra-territorial effect can be imputed to its judgment, unless a proceeding in divorce be an exception to the general rule. The governing principle is well stated by Mr. Story in his Conflict of Laws, § 20, chap. 2; and in Steel v. Smith, 7 W. & S. 447, C. J. Gibson shows that this principle is not affected by the provision in the Constitution of the United States for giving full faith and credit to the judicial records of the several states. The same principle is recognised by C. J. Lewis, in Rogers v. Burns, 3 Casey 527. In a question of jurisdiction, therefore, there is no difference between the interstate and a foreign relation; and the only question is how far the subject of divorce forms an exception to the general principles requiring personal notice of the proceeding. The marriage relation being one of civil status, as well as of contract different views have been entertained. The right of every nation or state to regulate the civil relations of its citizens, being one pertaining to the good order and proper economy of the body politic, cannot be doubted. Yet, how far in regulating the status of one within its borders, it may thereby affect the interest of another not answerable to its jurisdiction, is not so easily perceived. In the absence of a common domicil of the husband and wife, the doctrine of their marital unity is pressed in order to strengthen the jurisdiction which a husband attempts to import into the forum of the new domicil he has sought.

If by legal unity the wife may be considered a citizen of Iowa, contrary to the truth, and thereby subjected to the jurisdiction of its tribunals, the case must be ended, for the provision in the Federal Constitution giving effect to the record compels us to recognise it as equal in validity with our own. But the unity of person created by the marriage is a legal fiction, to be followed for all useful and just purposes, and not to be used to destroy the rights of either, contrary to the principles of natural justice, in proceedings which, from their nature, make them opposite parties.

It required their mutual consent to establish the relation from which the unity arises; and the same law of right demands them to be viewed in their separate natural condition when either proceeds against the other to destroy this relation. It is the necessary effect of their being opposite parties in the same proceeding. Upon a dissolution of the marriage, therefore, each has a right to be heard as a natural person. This sends us back to the inquiry how far a state having a right to regulate the civil status of one of the parties, may, in doing so, alter the status of another, over whom it never has had any power?

Supposing that the state of Iowa, on an ex parte proceeding, or a proceeding when notice is given only by publication, can make the divorce effectual to protect the husband within its jurisdiction from all civil and criminal proceedings founded on the marriage, and can regulate the descent and succession of his property in that state, discharged from the claims of the wife; yet can this effect be made extra-territorial upon any correct principles of universal application?

An argument is quoted to us that the "state being interested in every marriage contract, which imposes upon its citizens a status in life, assumes to change and modify that status whenever the public good demands it. And this right, unless unjustly exercised, will be conceded by all foreign governments."

Doubtless this is correct when confined to those who are her citizens; or when applied to the question so greatly contested between the English and Scottish courts, whether the lex loci contractus or the law of the domicil should regulate the power of divorce.

Mr. Bishop, in his work on Marriage and Divorce, § 141, quoting the language of Judge Story, in his Conflict of Laws, § 230 a, says: "The doctrine now firmly established in America upon the subject of divorce is, that the law of the place of the actual bonâ fide domicil of the parties gives jurisdiction to the proper courts to decree a divorce for any cause allowed by the local law; without reference to the law of the place of the original marriage, or to the place where the offence, for which the divorce is allowed, was committed." Excepting the last statement, in reference to the locus delicti, this is the law of Pennsylvania. But the law of domicil implies that it is the actual domicil of both of the parties, or was, when the offending party left it. In a proceeding to dissolve a marriage the parties stand upon a level of rights. When the injured party seeks a new domicil, and the domicils are, therefore, actually different, there is no greater reason why the husband's new domicil should prevail over the wife's, than that hers should prevail over his. In this aspect justice requires that neither should draw the other within the folds of a foreign jurisdiction.

If a wife enjoying here the comforts of home, friends and refinement, should refuse to follow the whim or caprice of her husband into western wilds, or to encounter the perils and hardships of a journey to the mines of California, on what principle of that natural justice which regulates interstate law, shall the husband's new abode draw his wife's domicil thither? Clearly no state right to regulate the status of its own citizens can justify this. The publication of the notice...