Jones v. Jones

• Decision Date: 28 February 1888
• Citation: 108 N.Y. 415,15 N.E. 707
• Parties: JONES v. JONES.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 415

15 N.E. 707

JONES

v.JONES.¹

Court of Appeals of New York.

February 28, 1888.

Appeal from general term, supreme court, First department.

This was an action for divorce begun by William Gibson Jones, by publication, against Lulu V. Jones, his wife, but before it was tried the defendant had obtained a divorce in Texas, dissolving the marriage, and pleaded that judgment in this cause as a defense. Judgment was for defendant Lulu V. Jones, and plaintiff appeals.

Edwin B. Smith, for appellant.

Wm. W. Badger, for respondent.

ANDREWS, J.

This action for divorce was begun against the defendant in May, 1882, by publication of the summons, but before it was tried the defendant had obtained a decree of divorce in Texas, in a suit commenced by her in that state against her husband, this plaintiff, by the filing of a petition July 28, 1882, and the service on the husband, a resident of New York, at the city of New York, of a copy of the petition and of the citation in the action, which decree was, by supplemental answer in this action, pleaded as a defense thereto, and her defense having been sustained by the court below, the plaintiff has appealed to this court.

It appears from the record that the parties, then being residents and citizens of this state, were married in the city of New York in 1875. They lived together until 1878, when they separated, and the wife went to the house of her parents in the city of New York, where she remained until January, 1882, when she removed with her parents to the state of Texas, where she has remained from that time. By the laws of Texas, divorces may be granted for cruel treatment and other causes than adultery, and an action may be brought by a person who has been a bona fide resident of the state for six months prior to the commencement of the action. The petition filed by the present defendant in the action in Texas, alleged that she was a bona fide inhabitant and citizen of Texas, and had continuously remained there for more than six months next preceding the filing of the petition; that the parties had married in 1875, and that the petitioner was compelled to leave her husband in 1878, on account of his cruel treatment, and that she had since lived separate and apart from him. The petition alleged in detail the circumstances of the conduct of the husband, and prayed for a citation to the defendant, and for a decree of divorce in favor of the petitioner, and that she should be awarded the custody of the child of the marriage. The citation, together with a certified copy of the petition, was personally served on the husband in the city of New York, September 7, 1882. On the 1st of December, 1882, the husband, then being in Texas, through his attorney filed an answer to the petition, in which, after protesting that the court had no jurisdiction of his person, and that he appeared for the purpose of the motion only, moved to quash the service of the citation and notice on the ground among others that the service was defective, and not sufficient in law to give the court jurisdiction. This was followed by a special plea to the jurisdiction, special exceptions to the petition, and a general denial of the allegations therein. On the 2d of December, 1882, the wife filed an amended petition, alleging, in addition to the matters stated in the original petition, that the husband, in April, 1882, in Texas, falsely charged her with unchastity, using indecent and opprobious language towards her. The husband on the 6th of December 1882, filed an amended answer, protesting as before that the court had no jurisdiction of his person, and containing special pleas and a general denial as in the first answer. On the same day the court overruled the husband's motion to quash the service of the citation and notice, and he excepted. On May 4, 1883, the husband filed a second amended answer, still protesting, etc., against the jurisdiction, and moved for a continuance of the case until the next term, to enable him to prepare for trial. The motion was granted and the case was tried before a jury at the December term, 1883, and, upon their finding, judgment of absolute divorce was rendered for the plaintiff. The husband appealed therefrom to the supreme court of Texas, where the judgment was affirmed.

The case turns upon the validity of the Texas judgment, and that question depends upon the point whether the Texas court had jurisdiction to rneder it so as to entitle it, under the constitution and laws of the United States, to be regarded in this state as a valid and conclusive adjudication dissolving the marriage. The right to maintain an action for divorce presupposes the existence of the relation of husband and wife. 2 Rev. St. 144, § 38; Code Civil Proc. § 1756. If the Texas judgment is a binding adjudication here, clearly the complaint was properly dismissed, because, when the case came on for trial, there was no marital bond, and no relation of husband and wife existing between the parties. It makes no difference that the action in this state was first commenced. If the Texas court had jurisdiction, the case is simply one of concurrent jurisdiction in the courts of two states, and the judgment first rendered, dissolving the marriage, concludes the question in the court of the other jurisdiction. The validity of the Texas decision is assailed on the ground that the courts in that state never acquired jurisdiction over the person of the defendant. If this contention is well founded, it is conclusive against giving any effect to the Texas decree. The judgment of another state may be impeached for want of jurisdiction of the person or subject-matter, when it comes in question in our courts. It is an elementary principle that no court can lawfully adjudge rights of persons or property in the absence of jurisdiction, and it is firmly settled that a judgment of the court of another state is binding here only so far as the court rendering it had jurisdiction. It is not protected under the constitution and laws of the United States from attack for want of jurisdiction. If rendered without jurisdiction it is not a judgment, but a mere arbitrary prescription, without force as a judicial proceeding in another forum. Borden v. Fitch, 15 Johns. 121;Starbuck v. Murray, 5 Wend. 148;Kerr v. Kerr, 41 N. Y. 272;Thompson v. Whitman, 18 Wall. 461. In the determination of the question whether the Texas court acquired jurisdiction of the person of the defendant in the action, it must be conceded at the outset that the service of the citation upon the defendant here, who at the time was a resident and citizen of New York, owing no allegiance to the state of Texas, was utterly void and ineffectual as a means of giving the courts of Texas jurisdiction of the defendant. The processes of courts run only within the jurisdiction which issues them. They cannot be served without the jurisdiction, and courts of one state cannot acquire jurisdiction over the citizens of another state, under statutes which authorize a substituted service, or which provide for actual service of notice without the jurisdiction, so as to authorize a judgment in personam against the party proceeded against. This question has recently been considered in several cases in this state, with a fullness of argument and illustration which leave nothing to be said, and it is sufficient to refer to the decisions. Kerr v. Kerr, supra; Hoffman v. Hoffman, 46 N. Y. 30;Hunt v. Hunt, 72 N. Y. 217;People v. Baker, 76 N. Y. 78;O'Dea v. O'Dea, 101 N. Y. 23, 4 N. E. Rep. 110. It cannot be doubted, therefore, that the Texas court did not...