Magowan v. Magowan

• Decision Date: 01 February 1899
• Citation: 42 A. 330,57 N.J.E. 322
• Parties: MAGOWAN v. MAGOWAN.
• Court: New Jersey Supreme Court

42 A. 330

57 N.J.E. 322

MAGOWAN

v. MAGOWAN.

Court of Errors and Appeals of New Jersey.

Feb. 1, 1899.

(Syllabus by the Court.)

Appeal from court of chancery; Reed, Vice Chancellor.

Bill by Mary E. Magowan against Prank A. Magowan for separate maintenance. From a decree advised by the chancellor (39 Atl. 364), plaintiff appeals. Reversed.

F. C. Lowthorp and Linton Satterthwaite, for appellant.

E. R. Walker, for respondent.

GUMMERE, J. This is a bill for maintenance filed by the appellant against her husband. As an antecedent to the primary relief prayed for, she seeks to have declared void a decree of divorce rendered by the district court of the territory of Oklahoma in a suit brought by her husband against her. Whether this decree can be disregarded and treated as a nullity by this court is the only question presented here for decision; for it is not denied that the conduct of the respondent has been such as to entitle the wife to a decree of maintenance, unless it is justified by the Oklahoma judgment. The ground upon which we are asked to disregard that judgment and declare it void is that the Oklahoma court had no jurisdiction over the subject-matter of the suit in which its decree was rendered. By the statute of Oklahoma, its courts have jurisdiction in actions for divorce only in those cases in which the plaintiff has been an actual resident of the territory, in good faith, for 90 days next preceding the commencement of the action. That the respondent not only was not a bona fide resident of that territory for 90 days next preceding his institution of the action for divorce, but that he never at any time resided there, is proved beyond the shadow of a doubt; and it is apparent, therefore, that the Oklahoma court was in fact without jurisdiction to render the judgment which the appellant now seeks to avoid. We are told, however, that it appears by the recitals contained in the decree that the question whether the respondent was a bona fide resident of Oklahoma for the statutory period was considered and decided by the Oklahoma court, in determining whether it had jurisdiction; and that a recital in a decree of divorce made by the court of another state that the petitioner was a resident of that state for the statutory period is conclusive in this state of the fact so recited. This, it is said by counsel, is the declaration of this court in Fairchild v. Fairchild, 53 N. J. Eq. 678, 34 Atl. 10. An examination of the opinion in the ease referred to will disclose that the rule there laid down is hardly so broad as is claimed. What we said in that case was that "where the plaintiff in a cause is required by statute to have been a bona fide resident of the state in which his action is brought for a fixed period of time, in order to enable him to maintain his action, the ascertainment by the court of...