Popovici v. Popovici
| Decision Date | 15 July 1927 |
| Docket Number | No. 2352.,2352. |
| Citation | 30 F.2d 185 |
| Parties | POPOVICI v. POPOVICI. |
| Court | U.S. District Court — Northern District of Ohio |
Harry Nusbaum, of Canton, Ohio, for plaintiff.
M. Y. Yost, of Cleveland, Ohio, for defendant.
The plaintiff, alleging herself to be a bona fide resident of the city of Canton and the county of Stark for more than 30 days, and a bona fide resident of the state of Ohio for more than one year last past, filed a petition for divorce and alimony against John C. Popovici, alleging him to be a subject of the King of Roumania and a Roumanian consul stationed at Cleveland, Ohio, averring that they were married in the city of Canton on or about June 2, 1918, and that one child, Elizabeth Popovici, age eight years, is the only issue of said marriage. Motion for temporary alimony and expenses was also filed by the plaintiff.
Due service was had upon the defendant, who now files a motion to dismiss the petition for divorce on the ground that the court has no jurisdiction over the subject-matter of the action, and because there is an insufficiency of fact to constitute a valid cause of action in equity against this defendant. Whether the case is one in law or in equity is not raised by the motion.
Plaintiff claims the right to maintain her suit in this court under favor of article 3, § 2, of the Constitution of the United States and of Judicial Code, §§ 24 and 256 (28 USCA §§ 41, 371). It is provided by article 3, § 2, of the Constitution, that the judicial power shall extend to all cases in law and equity affecting ambassadors, other public ministers and consuls, and in all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction.
In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.
Section 24 of the Judicial Code gives the District Courts original jurisdiction (Eighteenth) of all suits against consuls and vice consuls. Section 256 of the Judicial Code provides:
If the court has jurisdiction of this case, it must be under the foregoing provisions. The state of Ohio has provided by law, General Code, § 11979, for what cause divorce may be granted, and has given the power to grant divorces to the courts of common pleas.
Notwithstanding the provisions of the Constitution and the laws of the United States heretofore adverted to, the Supreme Court of the United States, in Barber v. Barber, 62 U. S. (21 How.) 582, 16 L. Ed. 226, speaking through Mr. Justice Wayne, has said: "We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony, either as an original proceeding in chancery or as an incident to divorce a vinculo, or to one from bed and board."
And the Supreme Court has in subsequent cases substantially announced the same position on the subject.
In the case of In re Burrus, 136 U. S. 586, 10 S. Ct. 850, 34 L. Ed. 1500, the court announced, through Mr. Justice Miller, that: "The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States." To the same effect is ...
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Spindel v. Spindel
...not necessary to a decision of the question before it, or that it was not supported by adequate legal reasons." Popovici v. Popovici, 30 F.2d 185, 186 (N.D. Ohio 1927). The wife then brought suit in a state court. It was now the husband's turn to invoke the Constitution and section 1351. He......
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Druen v. Druen
...Cir. 1947, 161 F.2d 688; McCarty v. Hollis, 10 Cir. 1941, 120 F.2d 540; Bowman v. Bowman, C.C.N.D.Ill.1887, 30 F. 849; Popovici v. Popovici, N.D. Ohio 1927, 30 F.2d 185; Manary v. Manary, N.D.Cal.1957, 151 F. Supp. 446; Bercovitch v. Tanburn, S.D. N.Y.1952, 103 F.Supp. 62; Linscott v. Linsc......
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Silva v. Superior Court
...L.Ed. 765. A suit for divorce between the present parties brought in the District Court of the United States was dismissed. Popovici v. Popovici, (D.C.) 30 F.2d 185. The words quoted from the Constitution do not of themselves and without more exclude the jurisdiction of the State. Plaquemin......
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Garberson v. Garberson, Civ. No. 546.
...765; Simms v. Simms, 1899, 175 U.S. 162, 20 S. Ct. 58, 44 L.Ed. 115; McCarty v. Hollis, 10 Cir., 1941, 120 F.2d 540; Popovici v. Popovici, D.C.Ohio 1927, 30 F.2d 185. The rule has been extended to exclude jurisdiction of the Federal courts over suits for the custody of children, In re Burru......