Loker v. Gerald

• Decision Date: 24 June 1892
• Citation: 157 Mass. 42,31 N.E. 709
• Parties: LOKER v. GERALD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

157 Mass. 42

31 N.E. 709

LOKER v. GERALD.

Supreme Judicial Court of Massachusetts, Middlesex.

June 24, 1892

COUNSEL

L.H Wakefield, for demandant.

P.H Cooney, for tenant.

OPINION

FIELD C.J.

We think that it appears that the divorce was obtained in the state of Colorado in accordance with the statutes of that state, and that the service of process on the wife, who is the demandant in the present action, was also in accordance with these statutes. The report recites that "it was not claimed by the demandant that the said William Loker went to Colorado for the purpose of procuring a divorce," and it must be taken that he was a bona fide resident of that state for more than a year before his suit for divorce was brought which is the time required by the statutes of Colorado, when the cause of divorce occurred in another state. A copy of the bill of complaint for divorce and of the summons was served on the wife in Massachusetts, where she lived; and the causes of divorce set forth by the bill were desertion for more than a year, and adultery; and the court, after hearing evidence decreed a divorce from the bonds of matrimony for desertion. Great pains were taken to give the wife notice and an opportunity to be heard. The parties were married in Massachusetts, and lived there as husband and wife, but the husband removed to Colorado, and we infer that the wife did not, but remained in Massachusetts, and we infer that the desertion on account of which the divorce was granted began in Massachusetts. The real contention is that as the wife was never domiciled in Colorado, and was never served with process in that state, the court had no jurisdiction over her to dissolve the marriage. It must be noticed that, by our statutes, desertion, continued for three years, and adultery, are causes of divorce; and that the statutes authorize divorces for causes occurring in other states, even when the parties were not married in this commonwealth, and were not inhabitants of the commonwealth at the time of the marriage, provided the libelant has resided in the commonwealth for five years next preceding the filing of the libel, and did not remove into the commonwealth for the purpose of obtaining a divorce. Pub.St. c. 146, § 5. In practice here, divorces are often granted in cases in which the libelee has never resided within the commonwealth, upon service made by publication, and by a registered letter sent to the...