Duke v. Duke
| Decision Date | 21 December 1905 |
| Citation | 70 N.J.E. 135,62 A. 466 |
| Parties | DUKE v. DUKE. |
| Court | New Jersey Court of Chancery |
Petition by James B. Duke against Lillian N. Duke for divorce. Hearing on plea to the jurisdiction by evidence in open court. Plea overruled.
R. V. Lindabury and A. A. Clark, for petitioner. Chauncey G. Parker and Samuel Kalish, for defendant.
PITNEY, V. C. (after hearing counsel for the defendant). I do not care to hear you further on the part of the petitioner.
This is a suit for divorce by a husband against his wife, commenced by petition, charging her with adultery committed in various places in the city and state of New York. It avers that the marriage took place in the state of New Jersey on the 29th of November, 1904, and that from that time up to the filing of the petition the parties have been, and now are, inhabitants and residents in this state. The plea avers that the court has neither jurisdiction of the subject-matter nor of the person of the defendant, and alleges that the petitioner was not at the time of the marriage, and has not been ever since, a resident of, or a citizen of, or domiciled in, the state of New Jersey, but was a resident of, and a citizen of, and domiciled in, the city of New York, and that the matrimonial domicile and residence of the parties was at the time of the marriage, and thence until the commencement of the suit, in the state of New York, and not in the state of New Jersey. The plea further sets up that the defendant was not served with process within the jurisdiction of this court, and has not consented thereto, and that the proceedings are without due process of law. The plea then invokes the provision of the Constitution of the United States forbidding any state to deprive any person of life, liberty, or property without due process of law, etc.
The charge on the part of the defendant of lack of residence and domicile in New Jersey strikes at the jurisdiction of the subject-matter as well as of the person. This appears, when we consider that the subject of divorce is not within the general jurisdiction of a court of chancery. In this state it is wholly statutory, and in this case comes under the second part of paragraph 1 of section 4 of the act concerning divorces (P. L. 1902, p. 503), "where the adultery was committed without this state and the parties complainant and defendant or either of them resided in this state at the time of the adultery and at the time of filing the bill or petition." If, then, the party petitioner or defendant resided in this state during the period covered by the petition herein, this court, by our statute, has jurisdiction of the subject-matter. But, in order to obtain jurisdiction of the person of the defendant by extraterritorial service of process, it is possible that something more than a mere residence is necessary. I stop here to say that, in order to raise the question of jurisdiction of the subject-matter, it was not necessary for the defendant to plead as she has done. That defense may be, in my judgment, set up in her answer to the merits. It is the lack of jurisdiction of the person that can be raised only by plea, and the benefit of which is lost by general answer. According to all the authorities, in order to obtain jurisdiction of the person by extraterritorial service, there must be what is called a "res" within the territorial jurisdiction. In fact there can be no decree strictly in personam based upon an extraterritorial service of process. But the court may deal with the rights of parties residing out of the territorial jurisdiction in matters such as land and personal chattels within its jurisdiction. The foreclosure of mortgages, where the owner of the equity of redemption is not within the reach of domestic process, is an example. So with the enforcement of debts by attachment against nonresidents levied on their property within the territorial jurisdiction.
In cases of matrimonial offenses the res or matter within the territorial jurisdiction, which, it has been held by the courts of all the states, except New York, and finally by the Supreme Court of the United States ( the Court of Appeals of New York), is sufficient to give the courts of a state jurisdiction to proceed against a nonresident on service out of the state, is the married state. If the married state exists within the territorial jurisdiction, the court of that jurisdiction may proceed to deal with it by extraterritorial service on the absent party. This arises out of the very necessity of the case, since, unless such jurisdiction could be exercised, the offending spouse who should be able to escape beyond the jurisdiction before service would thereby be able to deprive the other spouse of his or her just remedy. By our statute a mere "residence" in the state is sufficient, and it has never been here determined, as I am aware, whether that residence must be or have been a matrimonial domicile—that is, whether it is necessary that the spouses should have had their joint home in this state—or rather, I should say, that it has been held in this state that it was not necessary that there should be a matrimonial domicile here. Rut the Supreme Court of the United States has never, as I am aware dealt with that precise question. In the Atherton Case, in which they held extraterritorial service sufficient, there was a matrimonial domicile in Kentucky, and the service was in the state of New York. However, in the present case the petitioner, who assumed the burden of proof, very properly undertook to show a domicile as distinguished from a mere residence at the time of the marriage, and from thence until the separation. He alleges that the county of Somerset, in this state, has been for several years before the marriage the chosen domicile of the petitioner, and that it continued to be such after the marriage, until the separation, which, by the evidence presently to be mentioned, occurred some time in July of the present year. And he argues that, in the absence of a separation, the domicile of the husband is the domicile of the wife, wherever they may have been actually sojourning. And he avers that it was the actual residence of the wife for a portion of the time between the marriage and the separation.
One other remark before coming to the facts: There may be a domicile without an actual present residence, and, vice versa, there may be a present residence without a domicile, as in the case of our foreign ministers who reside abroad without losing their domicile in the United States, and our Cabinet ministers and many of our members of Congress, who reside in Washington, but are domiciled in their respective states. Again, a man may have two or more residences, but only one domicile. He may have a country residence and a city residence, and each with all the paraphernalia of a home. Such instances are very common, and then it becomes a matter of choice. He chooses which one of the residences shall be his domicile and his choice is final, if made in good faith, although he may spend less time at his domicile than at his residence. Now, the marks of the domicile are numerous. They include the character of the place, and the acts and declarations of the party in connection therewith, provided, of course, the declarations are made in good faith, sincerely, and ante litem motam. In this country one of the most important indications of a domicile is the exercise of the electoral franchise.
Let us now look at the facts of this case, and that includes many years of the life of the petitioner. He was born and bred in Durham, N. C, where his father was engaged in dealing in and manufacturing tobacco. The petitioner was interested with his father as one of the firm of W. Duke's Sons & Co. Twenty-one years ago, when he was 28 years old, in the year 1884, he came to New York City, and established a tobacco business there. He was a bachelor from thence until his present marriage, and he lived in New York City from 1884 for 10 years. He never voted there. His domicile of origin was, of course, in the state of North Carolina, and so remained until he determined to change it, and he had a right to retain that domicile, although living in New York. He admits that he did, as he supposed, change it some time before the end of the 10 years; but he is unable to fix the date when he did change it to New York, if ever. At the same time he was described in official and other documents as of the city of New York as early as the year 1890. In the year 1893 he purchased the old Veghte farm of 300 acres, lying just south of the Raritan river, near Somerville. On it was a large old-fashioned mansion house. In the conveyance, as originally prepared, he is described as of Somerset county, but that description is erased, and the words "New York City" inserted, so that we may conclude that at that time he considered his residence in New York, and had not finally determined to make Somerset county his home. But in the year 1894 he moved the furniture of his suite of rooms in New York City to the old Veghte house and set up housekeeping there. From that time on he has been described in all official and semiofficial papers as of the county of Somerset, N. J. He was the New Jersey director of the corporation or corporations in which he was interested. He commenced directly from 1893 on to purchase more land, and from time to time for the next six or seven years bought several tracts of varying sizes, nearly every one adjoining each other until he had acquired over 1,700 acres. He was shortly after (1894) enrolled by the official canvasser as a voter in the township of Hillsboro, in the county of Somerset, and was thenceforward taxed yearly upon his poll. He actually voted there in the years 1896, 1900, and 1904, when he was sent by the congressional district of which Somerset county is a part to the Republican Convention in Chicago as a delegate. He always spoke of that place as his...
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