Hekking v. Pfaff, 250.

• Decision Date: 29 December 1898
• Docket Number: 250.
• Citation: 91 F. 60
• Parties: HEKKING v. PFAFF.
• Court: U.S. Court of Appeals — First Circuit

91 F. 60

HEKKING v. PFAFF.

No. 250.

United States Court of Appeals, First Circuit.

December 29, 1898

Charles H. Winsor (David F. Kimball, on the brief), for plaintiff in error.

Jabez Fox (Edwin B. Hale and Gerard Bennett, on the brief), for defendant in error.

Before COLT, Circuit Judge, and WEBB and ALDRICH, District Judges.

ALDRICH District Judge.

The parties to this case were married in December, 1889, at the city of Stuttgart, in the kingdom of Wurtemberg, Germany. Henry Pfaff, Jr., the husband, who is the defendant here, was then, and is now, a citizen of Massachusetts. The wife's maiden name was Christine Hekking, and it is not claimed that she was either a citizen or resident of South Dakota at the time of her marriage, but according to her present claim she subsequently became a resident of that state, and was a resident in good faith for more than 90 days prior to bringing her proceeding in such state for a divorce. The husband was never a citizen of South Dakota, and it does not appear that he ever resided or had property there. The wife's divorce proceedings were begun in South Dakota in December, 1892. After alleging residence and her causes, she prayed for a divorce and for alimony. The proceeding was advanced upon the theory that the husband was not in South Dakota, and that his residence was unknown. A summons was issued, and an officer made return that the defendant could not be found. Thereupon the judge, reciting the fact that the defendant husband could not be found within the state after due diligence, that he was not a resident of said state, and that his residence was unknown, ordered that the summons be served by publication in the Sioux Valley News, that a copy of the summons be deposited in the post office directed to the defendant at Hotel zur Krone, Cassel Germany, where it was ascertained he last was, and another copy directed to him at the city of Boston, in care of his father, at 330 Walnut avenue. It does not appear from the record that the defendant's property was attached in the state of South Dakota, and it is not claimed that the defendant had actual notice of the proceeding against him, or that he appeared therein by counsel or otherwise. It does however, appear that the cause came on for trial in April, 1893, the husband not appearing, and, upon evidence that the order of notice had been complied with, the state court assumed jurisdiction of the cause, adjudged the bonds of matrimony between the parties dissolved, and that the plaintiff have leave to resume her maiden name. The prayer for alimony was not passed upon at this time, and there was no express reservation of that question for future consideration. In March, 1896,-- nearly three years later,-- upon motion of the plaintiff's attorney, leave was granted to amend the complaint, and add material allegations as to the plaintiff's lack of means of support and the defendant husband's income and ability to afford relief. There was no notice of this motion, and none in the cause other than that originally given. The defendant did not appear, and there is no evidence that he had knowledge of this proceeding. On the contrary, the fact appears from the pleadings here that he had no knowledge of the motion to amend, or of the alimony proceedings and judgment, until this suit was commenced, in July, 1896. It appears that, as the cause progressed ex parte in the South Dakota court, the decree of April, 1893, was 'opened so as to allow plaintiff, as a part of said decree, an allowance for alimony and support from defendant to plaintiff,' and in June, 1896, it was ordered and adjudged, after hearing allegations and proofs, that the plaintiff be allowed the sum of $25,000, to be immediately paid by the defendant to her or her attorneys, and that this order or judgment be a part of the original judgment, and take effect from the date thereof. So much for a statement of the history of the South Dakota proceedings as disclosed by the record.

The case before us is based upon the money demand feature of the South Dakota judgment, and the question is whether such judgment is binding upon the defendant, and should be upheld and enforced extra territorium. Before coming to the precise question upon which the plaintiff makes her chief contention, we may refer generally to the well-settled doctrine that the federal constitutional provision that full faith and credit shall be given in each state to the records, acts, and judicial proceedings of the courts and magistrates of every other state does not preclude inquiry into the jurisdiction of the court in which the judgment is rendered (Simmons v. Saul, 138 U.S. 439, 448, 11 Sup.Ct. 369); and, though the federal courts are not foreign tribunals in the sense of their relations to the courts of the various states (Pennoyer v. Neff, 95 U.S. 714, 732), they are tribunals of a different sovereignty, exercising a distinct and independent jurisdiction, and bound to no greater measure of faith and credit than is required between the courts of the different states.

The question of jurisdiction being thus open to us, and it appearing from the records of the South Dakota court that no personal service was made upon the defendant, we must treat the judgment, so far as it relates to a...