« ZurückWeiter »
phia, the wife was forced by the extreme cruelty of the husband to leave him. She returned to Massachusetts, while he went on to Colorado. Subsequently the wife sued in Massachusetts for a divorce from bed and board. The husband was brought in by substituted service and defaulted. The court, in the most explicit terms, recognized that a decree of divorce to have extraterritorial effect must be rendered with jurisdiction over both parties. It said (p. 159): 'For the purposes of divorce the general rule of jurisprudence is that a divorce granted in the place of the domicile of both parties, and there valid, is good everywhere.' The court came then to consider whether it could render a decree in Massachusetts in favor of the wife. This depended upon a statute of Massachusetts which authorized the granting of a divorce where the cause for divorce occurred while the parties had lived together as husband and wife in Massachusetts, and where one of them lived in that state when the cause for divorce occurred. It was held that as at the time of the commission of the cruelty in Philadelphia charged against the husband, the domicile of the parties in Massachusetts had not been lost, and as by that cruelty the wife was justified in returning to Massachusetts, and the subsequent acquisition of a new domicile by the husband in Colorado did not make such domicile that of the wife, there was jurisdiction, and the divorce was granted.
"Hood vs. Hood (1872), 110 Mass., 463, was an attempt again to assail the validity of the Illinois decree of divorce which had been adjudged valid in 11 Allen (Mass.), 196, because it was found that both the husband and wife had been parties to the decree. The Massachusetts decree so holding was therefore
held to be res judicata as to all persons and to foreclose further inquiry into the validity of the Illinois decree of divorce.
"In Burlen vs. Shannon (1874), 115 Mass., 438, the facts leading up to the controversy and those involved therein were as follows: Shannon and his wife lived together in Massachusetts, where she left him. Without stopping to refer to prior legal controversies which arose between Shannon and his wife and between Shannon and Mrs. Burlen, which are irrelevant to be considered, it suffices to say that Mrs. Burlen sued Shannon in 1850 to hold him liable for necessary supplies furnished to the wife. Shannon resisted on the ground that the wife had been living apart from him without his fault or consent, and this defense was maintained. 3 Gray (Mass.), 387. Shannon went to Indiana in 1855 and took up his domicile in that state, where, in 1856, he obtained a decree of divorce, upon constructive service. Subsequently, in Massachusetts, Mrs. Burlen again sued Shannon for necessaries furnished to the wife between Feb. 22, 1860, and Feb. 7, 1866. He pleaded the Indiana divorce, and the validity of the divorce was assailed by Mrs. Burlen on the ground that the wife had not been a party to the divorce cause, and therefore the Indiana decree had not extraterritorial effect in Massachusetts. The court, in effect, after reiterating the previous rulings and referring to the statute concerning the necessity for the presence of both parties within the jurisdiction where a decree for divorce of another state was sought to be given effect in Massachusetts, also reiterated the previous ruling that the wife might acquire a separate domicile from the husband if she lived separate from him for justifiable cause. The court was brought,
therefore, to consider whether Mr. and Mrs. Shannon were both parties to the Indiana decree on the ground that the domicile of the husband was the domicile of the wife. The solution of this question depended, as it had depended in Hood vs. Hood, 11 Allen (Mass.), 196, upon whether the wife was absent from the husband because of his fault. On this subject it was decided that the previous judgment in favor of Shannon and against Mrs. Burlen in the prior action between the parties had conclusively determined between them that Mrs. Shannon was absent from her husband without his fault or consent, and, therefore, under the legal presumption that the domicile of the husband was the domicile of the wife, both the husband and wife were parties to the Indiana decree and it was not subject to attack in Massachusetts. To cite, as has sometimes been done, the language of the opinion of the court referring to the previous judgment in the earlier action between Mrs. Burlen and Shannon as if that language referred to the Indiana decree of divorce, leading to the implication that that decree was held to be conclusive, even if only one of the parties was domiciled in the state where the decree was rendered, not only is a plain misconception, but is equivalent to asserting that the Massachusetts court had overruled its previous decisions and disregarded the spirit, if not the letter, of the state statute without the slightest intimation to that effect.
"In Cummington vs. Belchertown, 149 Mass., 223; 21 N. E. Rep., 435, the facts were these: The parties to a marriage, celebrated in Massachusetts, lived together in that state until the wife was taken to a Massachusetts asylum for the insane, when the husband
abandoned her, acquired a domicile in New York, there brought suit on the ground of fraud for the annulment of the marriage, and obtained a decree. The wife was only constructively served with process, did not appear, and was not represented. The Massachusetts court held, upon the authority of the Blackinton case, 141 Mass., 432; 5 N. E. Rep., 830, to which we have already referred, that if the decree was to be recognized in Massachusetts, it could only be on grounds of comity. And in concluding its opinion the court said:
"Upon the ground, then, that the decree of the New York court attempts to annul a marriage in Massachusetts between Massachusetts citizens, and thus affect the legal status of the woman, who has remained domiciled in Massachusetts and has never been within the jurisdiction of the New York court, and deprive her of the rights acquired by her marriage, and especially because it declares the marriage void for a reason on account of which by the Massachusetts law it cannot be avoided, we are of opinion that it should not be enforced here, and that no principle of interstate comity requires that we should give it effect.'
"True it is the court reserved the question as to what effect might be given to a divorce if granted by a New York court under circumstances such as existed in that case. But, as a suit for a declaration of nullity and one for divorce are both but modes for determining judicially the status of the parties, it must in reason follow if jurisdiction over both is a prerequisite in the one class, it is of necessity also essential in the other.
"Maine.-In Harding vs. Alden (1832), 9 Me., 140, the facts were these: While living together in Maine a husband deserted his wife. He went to North Caro
lina, where he pretented to marry, and lived there with another woman. In the meantime the wife whom he had deserted took up her residence in Rhode Island, where she sued for a divorce on the ground of the adultery committed by the husband in North Carolina. The husband, who was notified in North Carolina, did not appear in the Rhode Island divorce cause. A decree of divorce was granted and the wife then remarried. The first husband, during the coverture, owned and alienated real estate in Maine, and a statute of that state provided that where a divorce was decreed for adultery by the husband, dower might be assigned to the divorced wife in the same manner as if the husband were dead. The divorced wife brought an action of dower in a court in Maine. The Rhode Island decree was held to possess validity in Maine and the statute relating to dower was decided not to be limited to divorces decreed within the state of Maine. Considering the opinion in its entirety, it is plain that the Rhode Island divorce was given recognition from considerations of right and justice and upon the ground of state comity. Thus, the court called attention to the fact that adultery was a cause for divorce in both states and that divorces were granted in Maine against non-residents; and, it was observed, that 'there would be great inconvenience in holding' that divorces ought not to be recognized in other states when granted in the state where the injured party resided against one who had established his domicile in another state and there committed adultery.
"True it is in the course of the opinion reasoning was employed tending to show that the Rhode Island court might be considered to have had jurisdiction in the complete sense and it was intimated that the full