Kelley v. Kelley

• Decision Date: 27 March 1894
• Citation: 161 Mass. 111,36 N.E. 837
• Parties: KELLEY v. KELLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 111

36 N.E. 837

KELLEY v. KELLEY.

Supreme Judicial Court of Massachusetts, Essex.

March 27, 1894

The equitable count in the plaintiff's declaration upon which the cause was heard alleges that in 1888 the plaintiff recovered judgment against the defendant in the supreme court of the state of New York for the sum of $6,299.60, and that said judgment is in full force and effect, and the plaintiff prays for an execution to enforce said judgment in this commonwealth. The copy of the record of the proceedings in the New York court, annexed to the bill was the only evidence of said judgment presented, and was relied upon by plaintiff as proof of the following facts That the defendant, John B. Kelley, on September 10, 1877 brought suit against the plaintiff, Ellen Kelley, in the supreme court of New York, and sought thereby to have his marriage with her annulled on the ground that, at the time of said marriage, her husband by a previous marriage was alive that said Ellen Kelley contested the suit, and by her pleading asserted the validity of her marriage with said John B. Kelley; that the court ordered payment of alimony pendente lite by him to her in the sum of $10 per week, commencing October 22, 1877; that on April 17, 1888, the court dismissed said suit for failure of prosecution, and because the plaintiff had departed from the state, and awarded judgment to said Ellen for the arrears of alimony due under the previous order of the court, and for costs of suit and counsel fees, amounting, in all, to the sum above named,--$6,299.60. The defendant's pleadings are a general denial, and a supplementary answer which alleges that, in a suit brought by said John B. Kelley against said Ellen Kelley in the supreme judicial court of Massachusetts for anulment of the marriage between them, the court, on April 27, 1887, issued its decree annulling said marriage. The plaintiff admitted the facts alleged in the supplementary answer in regard to the Massachusetts decree, and it was also admitted that this previous suit in Massachusetts was commenced March 10, 1887, that the same grounds for annulment of the marriage were alleged as in New York, and that said Ellen was served with process, and defaulted for nonappearance. The case was heard upon the bill (the second count of plaintiff's pleading) and answers. The defendant contended that the judgment alleged had not been proved, and that, if such had been proved, the decree of the Massachusetts court would be a bar to the enforcement of such a judgment here, and that the plaintiff could not recover by reason of her laches. The court found for the defendant, and, at plaintiff's request, reported the case to the supreme judicial court upon the questions whether plaintiff's proof of the New York proceedings was competent, and sufficient to sustain the allegations of the bill, in the absence of any evidence offered by the defendant, and, if so, whether the facts admitted in regard to the Massachusetts decree constitute a defense to the bill, and whether the plaintiff is entitled to the relief asked, upon all the evidence in the case.

COUNSEL

Clifford

Brigham, for plaintiff.

Henry F. Hurlburt, Eugene T. McCarty, and Daniel N Crowley, for defendant.

OPINION

ALLEN, J.

In this commonwealth, no power exists in any court to pass an order for the payment of alimony pendente lite, or of permanent alimony, in a matrimonial cause of any description, except under provisions of statute conferring such power. By the constitution of Massachusetts (part 2, c. 3, art. 5) it was provided that "all causes of marriage, divorce and alimony *** shall be heard and determined by the governor and council until the legislature shall by law make other provision." By St. 1785, c. 69, § 2, it was enacted that "all marriages where either of the parties shall have a former wife or husband living at the time of such marriage shall be absolutely void;" and, by section 3, "divorces from the bond of matrimony shall be decreed in case *** either of them [the parties] had a former wife or husband alive at the time of solemnizing such second marriage." In section 5, certain provisions for alimony are made, but none in case of such void marriage. In section 7, "all questions of divorce and alimony shall be heard and tried by the supreme judicial court." It is not necessary to make special reference to later statutes, which have always, since 1785, contained such provisions upon these subjects as seemed expedient to the legislature; and the authority of the court to decree alimony and counsel fees has always been considered to rest exclusively upon the statutes. Shannon v. Shannon, 2 Gray, 285; Baldwin v. Baldwin, 6 Gray, 341; Coffin v. Dunham, 8 Cush. 404; Davol v. Davol, 13 Mass. 264; West v. West, 2 Mass. 223, 227; Orrok v. Orrok, 1 Mass. 341. In the absence of anything to show the contrary, there is a presumption that the common law of another state is like that prevailing here; but this presumption does not extend to the statutes of another state. Harris v. White, 81 N.Y. 532, 544; Silver Plate Co. v. Green, 72 N.Y. 17. In the case now before us, it appears that, in 1877, a husband brought, in the supreme court of the state of New York, a complaint against his wife, seeking to have his marriage annulled and declared void on the ground that at the time of the marriage she had a former husband living. She answered to the complaint, admitting her former marriage, but averring that it was invalid and void, because her former husband was then married to another woman, and that these facts were known to the present husband at the time of his marriage to her. The complaint contained no charge of fraud, force, mistake, or lunacy. In 1888, an order was passed, reciting the pleadings, and reciting that it appeared satisfactorily to the court that subsequently thereto an order was made, among other things, that the husband pay to the wife $10 a week alimony, commencing October 22, 1877; that it also appeared that he had wholly failed to do so from November 5, 1877, though due demand had been made; and that he had failed to prosecute his action, and had departed from the state,--and an order was made that the complaint be dismissed with costs, that her attorney have an extra allowance of $100, and that the wife recover of and have judgment against her husband for $6,114, being the amount of alimony due and owing to her under said order, and also for costs and the above allowance; and judgment was entered accordingly on April 17, 1888. It is also recited that counsel appeared for the husband at the time of this order in 1888. Judgment was entered accordingly, and, the husband having removed to this commonwealth, the wife now brings a suit in equity here, praying the superior court to order execution to issue upon said judgment. In defense, no direct charge is made that the entry of the judgment was procured by fraud or imposition upon the court, but it is set up, and the court has found as a fact, that on April 27, 1887,--about a year before the entry of the judgment in New York,--the husband obtained in this commonwealth a decree annulling his marriage, his wife having been served with process, and defaulted for nonappearance. There is nothing to show that this decree of nullity made here was known to the supreme court of New York at the time when the judgment there was entered. The order for the payment of alimony pendente lite is not set forth in the record, and does not appear otherwise than by the recital in the final order.

The principal question which we have to consider is whether it appears that the supreme court of New York had jurisdiction in the suit for nullity, to pass an order for the payment of alimony pendente lite, and, at the time of dismissing the suit, to pass an order for the payment of the arrears of alimony down to the date of the order, and of an allowance for counsel fees and for costs, and to enter judgment thereon. Jurisdiction may always be inquired into, and a judgment entered without jurisdiction will not be enforced. Simmons v. Saul, 138 U.S. 439, 11 Sup.Ct. 369; Thompson v. Whitman, 18 Wall. 457, 468; Cummington v. Belchertown, 149 Mass. 223, 21 N.E. 435; Cross v. Cross, 108 N.Y. 628, 15 N.E. 333. Ordinarily, and where the proceedings of a court of general jurisdiction are according to the course of the common law, there is a presumption in favor of the regularity of its proceedings, and it will be presumed to have had such jurisdiction as it has assumed to exercise, unless the contrary is shown. Galpin v. Page, 18 Wall. 350, 365. In the present case, the justice of the superior court reports that the defendant, among other defenses, contended that the judgment alleged had not been proved; and he declined to enforce the judgment rendered in New York, but the special ground of his refusal is not stated. So far as appears, no evidence was introduced, on the one side or on the other, to show the jurisdiction and authority of the court in the matter. No evidence of the law of New York, by statutes or decisions of courts, or otherwise, appears to have been presented; and there was nothing to sustain the jurisdiction except the fact that the supreme court, which was a court of general jurisdiction, assumed to exercise it. The question is whether this is enough in a proceeding of this kind. In the argument before us, certain statutes and decisions have been referred to which are supposed to bear upon the authority and jurisdiction of the court, and the fact is thus brought to our attention that there are statutes and decisions which relate to the subject. As already mentioned, the common law of another state is presumed to be the same as that which is established here, unless shown to be otherwise;...