Dumont v. Dumont

• Decision Date: 10 January 1900
• Parties: DUMONT v. DUMONT.
• Court: New Jersey Court of Chancery

45 A. 107

DUMONT

v. DUMONT.

Court of Chancery of New Jersey.

Jan. 10, 1900.

Suit by Elizabeth Dumont against Louis Emil S. Dumont for divorce. Decree for petitioner.

Edward S. Black, for petitioner.

Cornelius Doremus, for defendant.

PITNEY, V. C. (orally).

I don't care to hear you, Mr. Black. I will state my reasons, so that the parties may know what my views are. The petitioner sues the defendant for divorce on the ground of adultery. Her petition was filed on the 12th of November, 1898, and she alleges adultery committed by her husband with a Miss Greenberg at divers times and places mentioned, before that date. The answer denies generally the adultery, but it was admitted in open court on the trial that on the 14th of October—three or four weeks before the petition was filed—Mr. Dumont went through the ceremony of marriage with Miss Greenberg, and from thence lived with her as his wife; so that, as far as the adultery goes, there is no difficulty about the case. And I may say here that there are plenty of facts from which it could be inferred, without much straining of the judicial mind, that he had done the same thing frequently before that date. I, however, express no opinion upon that. The defense set up is a decree of divorce obtained by the defendant against the petitioner in a court of the state of North Dakota on the 26th of September, 1898. The petitioner attacks that decree, and was permitted, after proof made, to amend her petition by adding proper allegations on that subject, which defendant has the benefit of having denied. The decree is based upon service of process on the petitioner in the state of New Jersey, and she did not appear to the suit in Dakota. The decree is attacked on two grounds: First, want of jurisdiction in the Dakota court to pronounce any decree against the defendant; and, second, granting jurisdiction, that there was a palpable fraud practiced on the court in procuring the decree. The allegation of fraud has a wider range than that practiced on the court in procuring the decree on the merits. The allegation is that the defendant herein practiced a fraud on the Dakota court in inducing it to assume jurisdiction, and then, having induced the court to assume jurisdiction, he practiced a fraud on the court in inducing the court to make the decree. It is well settled that the provision of the constitution of the United States declaring that the courts of each state of the Union shall give to the judicial proceedings of other states the same faith and credit that they are entitled to in their own states does not prevent calling in question the jurisdiction of the court making the decree or judgment. Now, I will take the trouble to state what I understand is meant in this connection by jurisdiction. Jurisdiction of the court is power in the court, and is of two kinds: First, it must have jurisdiction of the kind of action that is brought; second, it must have jurisdiction of the party against whom the action is brought. First, as to the jurisdiction of the kind of action. AH courts do not have jurisdiction of all kinds of action. For instance, if you should bring an action of divorce in the circuit court of the county of Essex, and serve process on the defendant in the county of Essex, and a decree should be pronounced, that decree would be absolutely valueless and void, because the circuit court of the county of Essex has no power to deal with a question of divorce. Now, that is an illustration of what is meant by jurisdiction of the kind of action. The other is jurisdiction of the person, and that must be obtained by service of process within the territorial limits of the jurisdiction. If you should bring an action on a promissory note in the circuit court of the county of Essex, and serve the defendant with process in the county of Cape May, and the court, on that service of process, should proceed, and render judgment, that judgment would be absolutely void, because the court did not have jurisdiction of the person. And if you should bring an action on a promissory note in the supreme court of New Jersey, and the sheriff should go over to New York, and serve the defendant with process in New York, judgment rendered upon such service would be absolutely void, because the court, while it had jurisdiction of a suit on a promissory note, would not have jurisdiction of the person. Now, the jurisdiction of the person is indispensable. That is the general rule. Both jurisdictions must concur. The court must have jurisdiction of the kind of action, and it must have jurisdiction of the person. But there is an exception, which arises from necessity, to the requirement that there should be jurisdiction of the person obtained by service within the limits of the territorial jurisdiction. If a man claims to own a piece of land in the county of Essex, and some question arises as to the right of possession to that land, or as to the title to it, he cannot, by keeping out of the county of Essex, prevent the proper court of that county from taking jurisdiction of that question. And so, if he keeps out of the state, he cannot prevent the supreme court of New Jersey from taking jurisdiction of questions relating to the title of land within the state; and he cannot prevent the court of chancery from foreclosing a mortgage on property situate in this state by keeping out of the state, because the tiling itself—the res—is in the state. So, if he incurs an indebtedness, and goes out of the state, there comes another exception. The interests of justice require that a man should pay his debts, and if he has property in a particular state, and owes a citizen of that state, that citizen must have the right by judicial process to appropriate the property of the debtor to the payment of his debts; hence the attachment acts. But in all those cases where the defendant is not served within the territorial jurisdiction the courts require that the very best notice should be served on him that is practicable. But the exception is founded entirely upon the idea that the subject-matter of the suit—the res—is within the jurisdiction. Now, that exception has been extended by some of the states of the Union to cases of divorce. If a spouse has a domicile and a residence in the territorial jurisdiction, and the other spouse has been guilty of a breach of the marital contract, that delinquent spouse cannot, by going out of the jurisdiction, prevent the party who has the domicile there from having his or her remedy. That exception, I say, has been made in some states —in the majority of the states—of the Union, and it has been finally established in this state by a decision of the court of errors and appeals in the case of Felt v. Felt, which was decided in this court by me (57 N. J. Eq. 101, 40 Atl. 436), and has been affirmed by the court of errors and appeals by a large majority (45 Atl. 105), but has not yet been there officially reported. The only ground, however, as I said in Felt v. Felt, and again, I think, in the Streitwolf Case (N. J. Ch.) 41 Atl. 876 (in the court of errors and appeals, 43 Atl. 683), upon which the court can assume jurisdiction of a matter of divorce on the part of a complaining spouse without service of process within the territorial jurisdiction, is that the spouse has an actual domiciled residence in that jurisdiction. If he or she has such domiciled residence, and the delinquent spouse goes out of the jurisdiction, or is out of the jurisdiction, then the court will intervene; and I think, with great respect to the courts of our sister state, New York, that the decision in Felt v. Felt is right. In Felt v. Felt it was admitted by the counsel for the complainant wife that the husband, when he got his divorce in Utah, was a domiciled resident there, and had been for more than a year. If counsel had not admitted that, and had gone into the issue as to whether or not the husband had a domiciled residence In Utah, he might have troubled his opponent; but he relied upon the decisions of the state of New York, where he practiced, which hold exactly the contrary, viz. that jurisdiction in divorce cases cannot be obtained by service out of the territorial jurisdiction.

Now. I have stated this much of the law to make it perfectly clear. The allegation is that the defendant in this case, when he applied for a decree of divorce in Dakota, was not, nor was he at the time of his trial there, a bona fide domiciled resident of the state of Dakota, and that he imposed upon the court to make it believe that he was a domiciled resident, and entitled to the aid of the court, based upon service out of the jurisdiction. And that is the first part of the fraud. Now, let us look at it. The defendant and his wife were married In 1873, and they lived in New Jersey from thence until 1808, and were happy people, as far as appears, for the most part of their married life. Certainly, if ever there was a devoted, loving wife, who has come into the court of chancery for a divorce, it is the petitioner in this case. The defendant met this young lady, Miss Greenberg, in his business. He was an expert diamond setter. His services were in high demand—of course, only in those places where there are a great many diamonds in use, and a great demand for that kind of business. He worked first for a house here in Newark,— Durand's,—and there met this young lady, Miss Greenberg, and then set up for himself in New York for a while, and took her in his employ there, and then, failing in that, he went into the employ of Shear & Co., who were the leading diamond setters in the city of New York. Now, his wife discovered in 1805 and 1896—along there—that he was losing his affection for her. She was sensitive on the subject. She felt that there was something wrong. She got hints about Miss Greenberg, and she watched them, and found that he was taking her to New York nights for some purpose, and charged him with undue...