Davis v. Davis

• Decision Date: 04 April 1921
• Docket Number: 9753.
• Citation: 70 Colo. 37,197 P. 241
• Parties: DAVIS v. DAVIS.
• Court: Colorado Supreme Court

197 P. 241

70 Colo. 37

DAVIS v. DAVIS.

No. 9753.

Supreme Court of Colorado, En Banc.

April 4, 1921

Error to District Court, City and County of Denver; Julian H Moore, Judge.

Suit by Anna J. Davis against Robert W. Davis, Jr. Judgment for defendant, and plaintiff brings error.

Reversed and remanded.

L. J. Stark, of Denver, for plaintiff in error.

John T Bottom and Dana, Blount & Silverstein, all of Denver, for defendant in error.

DENISON J.

In May 1918, Anna J. Davis brought suit in the Denver district court against Robert W. Davis for divorce and alimony, alleging desertion, nonsupport, and adultery, and claiming a share of the property in his name and possession. The defendant pleaded a decree of divorce, granted him by the district court of Ada county, Idaho, in 1915, as res adjudicata, and also, it would seem, in abatement, as a plea to the jurisdiction. The plaintiff replied, denying the jurisdiction of the Idaho court over the parties or subject-matter, and as a fourth replication, alleged that defendant deserted her in 1912, and fraudulently and secretly procured the decree in the answer mentioned, while she was still domiciled in Denver, without service on her or appearance by her, and without notice to her, fraudulently preventing actual notice to her by omitting the middle initial in each of their names and by giving her address as merely Denver, though well knowing her address by street and number. When the case was called for trial defendant moved to dismiss for want of jurisdiction, on the ground of the Idaho decree; and the motion was granted. Plaintiff brings error.

The defense above mentioned was not a plea to the jurisdiction, but an ordinary plea of former judgment. See 3 Chitty, Pl. 930; Hallack v. Loft, 19 Colo. 74, 81, 34 P. 568. The Denver court had jurisdiction of the cause and parties as in a case for dissolution of partnership; that the parties were not partners or not man and wife could not affect that jurisdiction.

Former judgment or res adjudicata is a plea in bar, while a plea to the jurisdiction is in abatement. The plea stated a defense, but upon the question of jurisdiction the existence or nonexistence of a defense is immaterial. El Paso County v. Colorado Springs, 66 Colo. 111, 180 P. 301.

For the purposes of this suit the motion to dismiss was, in effect, the same as a motion for judgment on the pleadings or a demurrer to the replication (the last was the proper way to reach the question), and so admitted, the truth of the replication. The motion, therefore, should have been denied if the fourth replication was good.

Since the Idaho record shows no appearance by defendant nor personal service on her, we are not bound by that decree under the full faith and credit clause of the national Constitution (article 4, § 1). Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1; Perkins v. Perkins, 225 Mass. 82, 113 N.E. 841, L.R.A. 1917B, 1028. But we are required by comity to respect it and to give it force unless there is some grave reason to the contrary. Felt v. Felt, 59 N.J.Eq. 606, 45 A. 105, 49 A. 1071, 47 L.R.A. 546, 83 Am.St.Rep. 612. Since this state may refuse it recognition, Kenner v. Kenner, 139 Tenn. 211, 201 S.W. 779, L.R.A. 1918E, 587, it may recognize the decree on such terms as seem fit. Haddock v. Haddock, 201 U.S. 570, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1. We may, then, lawfully try here the question whether the decree was fraudulently procured in Idaho.

Ought we in comity to refuse to do so? The basis of comity in these matters is the principle that we ought to give to the decrees of other states that force which we would wish them to give to ours. The act of Congress of May 26, 1790 (U. S. Comp. St. § 1519), as to full faith and credit, requires us to recognize the judgment of other states to the same extent as we do our own. To recognize the decree to the extent required to affirm the judgment in this case, however, would give it greater force than we give our own, since in this state we permit collateral attack on a judgment rendered without sufficient service. Wilson v. Hawthorne, 14 Colo. 530, 24 P. 548, 20 Am.St.Rep. 290. See, also, Hallack v. Loft, 19 Colo. 74, 82, 34 P. 568; Crippen v. Ditch Co., 32 Colo. 447, 460, 76 P. 794. We ought not to wish other states to give our judgments such force in their territory, and neither law nor comity requires it.

Again, Idaho's right to grant the divorce upon substituted service is based on the theory that each state has full rights over the status of her citizens. Haddock v. Haddock. 201 U.S. 570, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1, and that the status of marriage is a res, and so divorce is a matter in rem, and justifies jurisdiction upon the principle stated in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. Have we less right over the status of our citizens than Idaho over that of hers? If we decline to consider the sufficiency of the proceedings there, we are deprived of that right. We lose control of the status of our citizen, the plaintiff below. Haddock v. Haddock, 201 U.S. 573, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1. Comity ought to be reciprocal. It would not be if we should hold with defendant in error. Id.

The fourth replication was therefore good, and the motion to dismiss should have been denied on that ground.

There is another and more obvious reason why the motion should have been denied. It was necessary for defendant to allege that the Idaho court had jurisdiction of the parties and...