Peterson v. Peterson

• Decision Date: 11 April 1918
• Docket Number: No. 1068.,1068.
• Citation: 24 Haw. 239
• Parties: ANNA M. W. PETERSON v. HARRY PETERSON.
• Court: Hawaii Supreme Court

24 Haw. 239

ANNA M. W. PETERSON

v.HARRY PETERSON.

No. 1068.

Supreme Court of the Territory of Hawai‘i.

Submitted April 5, 1918.

Decided April 11, 1918.

ERROR TO DISTRICT MAGISTRATE OF HONOLULU.

Syllabus by the Court

Owing to the fact that an action for divorce is in the nature of a proceeding in rem under certain circumstances a court may render a valid decree of divorce although it never acquired actual jurisdiction of the person of the defendant.

A decree for the payment of money as alimony is essentially in personam and it is therefore totally void in the absence of actual jurisdiction over the person and property of the one against whom it is awarded.

Under the full faith and credit clause of the Federal Constitution a duly authenticated judgment of a court of a sister State, exercising its jurisdiction as a common law court, and presented in a court of this Territory, would carry with it the assumption that the court of the forum rendering the judgment not only had jurisdiction of the subject-matter of the suit but of the parties thereto and it would not be incumbent upon one who bases a right of action upon such a judgment to aver facts essential to the existence of jurisdiction.

But it is an established rule that where a court of general jurisdiction has special and statutory powers conferred upon it which are wholly derived from statute and not exercised according to the course of common law or are not a part of its general jurisdiction it is to be regarded quoad hoc an inferior or limited court and its judgment to be treated accordingly, that is, its jurisdiction must appear upon the record and cannot be presumed.

It is elementary that in the early history of jurisprudence in England the common law courts exercised no jurisdiction over divorce cases, jurisdiction in such matters resting entirely with the ecclesiastical courts of the realm. In the several States of the Union that jurisdiction rests alone with those courts upon which it has been expressly conferred by legislative enactment.

This being true no presumption of jurisdiction obtains in such proceedings in any court of any of the States of the Union and all courts exercising jurisdiction in any such case must be taken and held to be courts of inferior or limited jurisdiction and in pleading such a judgment of another court it is necessary to aver in appropriate language its jurisdiction over the parties and the subject-matter of the suit.

C. F. Peterson for plaintiff in error.

E. J. Botts for defendant in error.

COKE, C. J., QUARLES AND KEMP, JJ.

OPINION OF THE COURT BY COKE, C. J.

The defendant in error, hereafter designated the plaintiff, commenced an action in the district court of Honolulu against the plaintiff in error, hereafter designated the defendant, based upon a decree for alimony alleged to have been rendered in a divorce suit instituted by plaintiff against defendant in the superior court of California in and for the City and County of San Francisco. The plaintiff claims the sum of $300 to be due her from the defendant by virtue of the decree entered in the California court. Although regularly served with process defendant failed to respond to the summons issued out of the district court of Honolulu and upon the default of defendant plaintiff proceeded ex parte to the proof of her case. The only evidence introduced by plaintiff was that of her attorney, who, after filing the decree in the divorce case, testified that under the provisions of the decree defendant was indebted to plaintiff in the sum of $300. Judgment was thereupon rendered against defendant for that amount also for attorney's commissions and costs of court. Some weeks thereafter defendant appeared in the district court and filed a motion to vacate the judgment, open the default and for leave to answer. This motion, which was supported by the affidavit of defendant, recited in substance “That said defendant has a good and meritorious defense to said action, namely, that he is not indebted to said plaintiff in any sum and was not indebted to plaintiff at or before the filing of said action, nor has he been since indebted to plaintiff; that the decree of divorce purporting to award plaintiff alimony and or maintenance either for herself or for plaintiff's child, and which decree is and was the basis for the court's awarding judgment in favor of plaintiff, was and is null and void in so far as it purports or attempts to award alimony or maintenance in favor of plaintiff or her said child, for the reason that the court in which said decree of divorce was granted had no jurisdiction of the person of the defendant and personal service of said summons and libel and the proceedings had therein was never made upon defendant, and the defendant was not at the time of the filing of said divorce proceedings a resident of California where said cause was filed and decree granted, nor has he been in the State of California since three years immediately preceding the date of the filing of said proceedings, but on the contrary this defendant has resided in the Territory of Hawaii continuously for more than six years last past, and during that period has not been in the State of California; that the judgment made and entered in the above entitled cause is null and void.” The motion was denied and defendant comes to this court on a writ of error.

For the proper consideration of the cause it will be necessary for us to consider only the second, third and fourth assignments of error, which are as follows:

“2. That said magistrate erred in rendering said judgment in favor of plaintiff and against defendant therein on the ground that there was not sufficient legal evidence upon which to base said judgment.

3. That said magistrate erred in rendering said judgment in favor of plaintiff and against the defendant herein on the ground that the decree of divorce for alimony upon which said claim is and was predicated is from a foreign jurisdiction, namely, the State of California, and there was and is no showing that the court issuing said decree had jurisdiction of the defendant in said cause, Harry Peterson, nor was there any showing that personal service of summons in said divorce proceedings was made upon said Harry Peterson, nor was there any showing that said court in said divorce proceedings had any authority or jurisdiction to award a personal money judgment against said Harry Peterson.

4. That said magistrate erred in rendering said judgment in favor of plaintiff and against defendant herein on the ground that the decree of divorce upon which said claim and judgment are predicated is and was void in so far as it awarded a personal money judgment against said defendant.”

The record herein shows that a final decree of divorce was made by the California court...