Montmorency v. Montmorency

• Decision Date: 12 July 1911
• Citation: 139 S.W. 1168
• Parties: MONTMORENCY v. MONTMORENCY.
• Court: Texas Court of Appeals

139 S.W. 1168

MONTMORENCY v. MONTMORENCY.

Court of Civil Appeals of Texas. El Paso.

July 12, 1911.

Rehearing Denied October 18, 1911.

Appeal from District Court, El Paso County; A. M. Walthall, Judge.

Action by Lula H. Montmorency against Arthur F. Montmorency. Decree for plaintiff, and defendant appeals. Affirmed.

T. C. Lea, for appellant. Davis & Goggin, for appellee.

PETICOLAS, C. J.

This was a suit for divorce brought in El Paso county, Tex., by Lula H. Montmorency, as plaintiff, against Arthur F. Montmorency, as defendant. The case is before us on an agreed statement, and we are not advised thereby on what grounds the divorce was granted, but it is agreed that the facts alleged in plaintiff's original petition were established by competent proof, and that plaintiff, under said proof, would be entitled to a decree of divorce under the laws of the state of Texas, providing the court has jurisdiction to render such decree in view of the decisions of the Supreme Court of the United States in the cases of Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, and Haddock v. Haddock, 201 U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867, and others, and, as no error is assigned which raises any question except the one adverted to, the agreed statement, while scanty, is sufficient to raise the questions assigned.

It appears from the agreed statement that the plaintiff and defendant were married in the republic of Mexico on the 3d day of April, 1907, and from the agreed statement and the judgment that the defendant abandoned the plaintiff on the 11th day of May, 1909. The suit was one in which service was had by publication of citation, and it appears that the affidavit for citation by publication and the publication of the citation were duly in compliance with the laws of the state of Texas, that the defendant failed to file an answer, and that an attorney of the El Paso court was appointed to represent him. The judgment recites that the defendant's exception to the jurisdiction of the court and his general exceptions were overruled. The court also found that Lula H. Montmorency, the plaintiff, is an actual, bona fide inhabitant of the state of Texas, and a resident and citizen of the county of El Paso, state of Texas, and that she has resided and had her domicile in the state of Texas and county of El Paso for more than six months preceding the filing of this suit, but the whereabouts of the defendant is unknown to the plaintiff, and that citation by publication had been duly issued and served, and ordered that the bonds of matrimony heretofore existing between the plaintiff and the defendant be, and the same are hereby, annulled and dissolved, and that the plaintiff is hereby divorced from the defendant. It was further ordered that the plaintiff pay all costs. To this judgment the defendant, through his attorney, excepted, and gave notice of appeal, and, perfecting his appeal, has brought the case to this court.

There is but one assignment of error, to the effect that the defendant, whose residence is unknown, being sued by plaintiff for the dissolution of the bonds of matrimony or for divorce in said cause, and constructive service, or service by publication alone having been had, the defendant, who did not appear and answer herein or otherwise subject himself to the jurisdiction of the court, cannot be affected by the decree of the court which is without jurisdiction, and its decree was therefore void, for the reasons that the same is violative of that portion of article 5 of the amendments to the Constitution of the United States of America, providing that "no person," etc., "shall be deprived of life, liberty or property without due process of law, etc.," this being a proceeding in personam and not in rem, and falling within the rule announced in the case of Pennoyer v. Neff. The further reasons set out in said assignment were that said court is without jurisdiction, and its decree would not be entitled to full faith and credit in other states of the Union under the provisions of section 1, art. 4, of the Constitution of the United States of America, and that it appears that neither the domicile of matrimony was in this state, nor that both parties hereto are within this state or county, so that the court, although it had jurisdiction over plaintiff, a citizen of this state, and over the subject-matter, had no jurisdiction over defendant, and therefore no right to render the decree of divorce. It is apparent that these assignments of error are predicated upon the case of Haddock v. Haddock, 201 U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867. We do not believe upon a careful reading of that case that it was intended or undertook to do more than to decide that in the particular case before them the court of New York was not bound, under the "Full Faith and Credit" clause of the Constitution and the enactments of Congress in reference thereto, to admit in evidence the judgment roll from Connecticut, and we do not believe that there can be found in that decision any holding that a judgment in one of the states in a court of competent jurisdiction where statutory residence and due citation by publication have been had is not valid as to the party residing in that state, and valid within the boundaries of that state. It is apparent, however, that if the Haddock v. Haddock Case decides that suits for divorce are in personam and not in rem, the citation in this case having been by publication, there would, under the authority of Pennoyer v. Neff, be raised a very grave question of whether the trial court had any jurisdiction of any kind, even as to the subject-matter or to the plaintiff below. The case of Haddock v. Haddock was one in which the husband and wife were married and lived in the state of New York, thus fixing the matrimonial domicile in New York. The husband deserted the wife, moved to Connecticut, established his statutory residence, sued for divorce on constructive service, and obtained judgment. Afterwards the wife sued him in New York for divorce and alimony on personal service. On the trial of that case the judgment roll from Connecticut was offered in evidence in bar of the proceedings in New York. The trial court having refused to admit the judgment roll, the question came before the United States Supreme Court; the federal question being: Did the New York court violate the Constitution of the United States by refusing to give to the decree of divorce rendered in the state of Connecticut the faith and credit to which it was entitled?

This question the United States Supreme Court answered in the negative, but Mr. Justice White, in rendering the majority opinion in that case, limited it in the judgment of the writer to the exact question before the court, and in confining their attention to the real question arising in the case he states at the outset certain legal propositions which he says are irrevocably concluded by previous decisions of the court. The fourth of these introductory statements of what he regarded as settled law is as follows: "The general rule stated in the second proposition is, moreover, limited by the inherent power which all governments must possess over the marriage relation, its formation and dissolution, as regards their own citizens. From this exception it results that where a court of one state, conformably to the laws of such state, or the state, through its legislative department, has acted concerning the dissolution of the marriage tie, as to a citizen of that state, such action is binding in that state as to such citizen, and the validity of the judgment may not therein be questioned on the ground that the action of the state in dealing with its own citizen concerning the marriage relation was repugnant to the due process clause of the Constitution. Maynard v. Hill, 125 U. S. 190, 8 Sup. Ct. 723, 31 L. Ed. 654." Again, he said: "Coming to apply these settled propositions to the case before us, three things are beyond dispute: (a) In view of the authority which government possesses over the marriage relation, no question can arise on this record concerning the right of the state of Connecticut within its borders to give effect to the decree of divorce rendered in favor of the husband by the courts of Connecticut; he being at the time when the decree was rendered domiciled in that state." It is apparent, we think, from the quotations made from the opinion in Haddock v. Haddock that that case does not in any way affect the jurisdiction of a court in Texas to hear and determine a divorce suit on constructive service in accordance...