Winston v. Winston

CourtNew York Court of Appeals
Writing for the CourtGRAY
Citation165 N.Y. 553,59 N.E. 273
Decision Date05 February 1901
PartiesWINSTON v. WINSTON.

165 N.Y. 553
59 N.E. 273

WINSTON
v.
WINSTON.

Court of Appeals of New York.

Feb. 5, 1901.


Appeal from supreme court, appellate division, First department.

Action for an absolute divorce by Walker Winston against Lillie Winston. From a judgment of the appellate division (54 N. Y. Supp. 298), affirming a judgment dismissing the complaint, both parties appeal. Affirmed.


[165 N.Y. 553]John J. Crawford, for plaintiff.

165 N.Y. 554]Theodore Baumeister, for defendant.
GRAY, J.

The plaintiff brought this action in order to obtain a judgment of absolute divorce from the defendant upon the ground of her adultery. The defendant denied the allegations of the complaint, and set up two defenses. She made recriminatory charges against the plaintiff, to the effect that he had been guilty of adultery, and set up a decree of divorce from the plaintiff procured by her in the courts of the territory of Oklahoma, which authorized her remarriage. The referee before whom the trial was had dismissed the complaint, upon the ground that, notwithstanding the plaintiff had made out a case against the defendant, he himself was [165 N.Y. 555]proved to have been guilty of similar misconduct. Upon the report of the referee it was adjudged, in the first place, that the Oklahoma divorce was invalid, and, in the next place, that the complaint was dismissed upon the merits. From this judgment both parties appealed,-the plaintiff because of the dismissal of the complaint, and the defendant because of the adjudication with respect to the Oklahoma divorce. The appellate division, in the First department, affirmed the judgment, and both parties have taken cross appeals to this court from the judgment of affirmance.

The evidence showed the Oklahoma decree of divorce, relied upon by the defendant, to have been invalid, because obtained without personal service of process upon this plaintiff, the defendant therein. The offense charged by the complaint against the defendant had consisted in the latter's marriage, after the Oklahoma decree, with the co-respondent named, and the question was whether the relation thus established was lawful in its nature or meretricious. That a judgment rendered upon the constructive service of process is without force against the personal status of a nonresident and nonappearing defendant has been frequently the subject of judicial discussion, and that the divorce decree in question was without jurisdiction as to this plaintiff, always a resident of this state,...

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20 practice notes
  • John Haddock v. Harriet Haddock, No. 119
    • United States
    • United States Supreme Court
    • April 16, 1906
    ...62 N. J. Eq. 509, 50 Atl. 788; Lynde v. Lynde, 162 N. Y. 405, 48 L. R. A. 679, 76 Am. St. Rep. 332, 56 N. E. 979; Winston v. Winston, 165 N. Y. 553, 59 N. E. 273; Irby v. Wilson, 21 N. C. (1 Dev. & B. Eq.) 568; Harris v. Harris, 115 N. C. 587, 44 Am. St. Rep. 471, 20 S. E. 187; Bidwell v. B......
  • Krause v. Krause
    • United States
    • New York Court of Appeals
    • March 12, 1940
    ...296, 12 N.E.2d 305. Consequently this divorce against the first wife is not recognized by the courts of this State. Winston v. Winston, 165 N.Y. 553, 59 N.E. 273;Hubbard v. Hubbard, 228 N.Y. 81, 126 N.E. 508;Lefferts v. Lefferts, 263 N.Y. 131, 188 N.E. 279. The subsequent marriage between p......
  • Talley v. Talley, 103-1905
    • United States
    • Superior Court of Pennsylvania
    • December 11, 1905
    ...44 N.J.Eq. 329 (15 A. 537); Hickerson v. Hickerson, 52 S.W. 1019; Helmes v. Helmes, 24 Misc. 125 (52 N.Y.S. 734); Winston v. Winston, 165 N.Y. 553 (59 N.E. 273). The learned judge, who tried the cause, erred in refusing to permit testimony to be given to prove that the plaintiff, John E. Ta......
  • Fuller v. Mitchell, No. 14827
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • May 28, 1954
    ...should receive must simply be such as to justify a belief that the incriminating testimony given is true.' Winston v. Winston, 165 N.Y. 553, 59 N.E. 273, 274; Yates v. Yates, 211 N.Y. 163, 105 N.E. 195; Evans v. Monaghan, 306 N.Y. 312, 118 N.E.2d 452. (Statement in part of this 'third offic......
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20 cases
  • John Haddock v. Harriet Haddock, No. 119
    • United States
    • United States Supreme Court
    • April 16, 1906
    ...62 N. J. Eq. 509, 50 Atl. 788; Lynde v. Lynde, 162 N. Y. 405, 48 L. R. A. 679, 76 Am. St. Rep. 332, 56 N. E. 979; Winston v. Winston, 165 N. Y. 553, 59 N. E. 273; Irby v. Wilson, 21 N. C. (1 Dev. & B. Eq.) 568; Harris v. Harris, 115 N. C. 587, 44 Am. St. Rep. 471, 20 S. E. 187; Bidwell v. B......
  • Krause v. Krause
    • United States
    • New York Court of Appeals
    • March 12, 1940
    ...296, 12 N.E.2d 305. Consequently this divorce against the first wife is not recognized by the courts of this State. Winston v. Winston, 165 N.Y. 553, 59 N.E. 273;Hubbard v. Hubbard, 228 N.Y. 81, 126 N.E. 508;Lefferts v. Lefferts, 263 N.Y. 131, 188 N.E. 279. The subsequent marriage between p......
  • Talley v. Talley, 103-1905
    • United States
    • Superior Court of Pennsylvania
    • December 11, 1905
    ...44 N.J.Eq. 329 (15 A. 537); Hickerson v. Hickerson, 52 S.W. 1019; Helmes v. Helmes, 24 Misc. 125 (52 N.Y.S. 734); Winston v. Winston, 165 N.Y. 553 (59 N.E. 273). The learned judge, who tried the cause, erred in refusing to permit testimony to be given to prove that the plaintiff, John E. Ta......
  • Fuller v. Mitchell, No. 14827
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • May 28, 1954
    ...should receive must simply be such as to justify a belief that the incriminating testimony given is true.' Winston v. Winston, 165 N.Y. 553, 59 N.E. 273, 274; Yates v. Yates, 211 N.Y. 163, 105 N.E. 195; Evans v. Monaghan, 306 N.Y. 312, 118 N.E.2d 452. (Statement in part of this 'third offic......
  • Request a trial to view additional results

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