McGiffert v. McGiffert — 31 Barb. 69

Majority

p. 69

McGiffert vs. McGiffert.

Headnote

Where a man, being a resident of this state, and having a wife who also resides here, goes to another state and in a suit brought there obtains a decree of divorce against his wife, without any service of process upon, or notice to, her, or any appearance by her, such decree is void, and unavailing for any purpose whatever.

THE complaint in this cause was filed by a wife against the defendant, her husband, for a divorce a vinculo matrimonii. The parties being residents, of this state, were married here on the 12th of September, 1856. They lived together but a few weeks, and then separated. In January, 1851, the defendant filed his complaint against the plaintiff, claiming to have the marriage annulled, on the alleged ground of the physical incapacity of the plaintiff to consummate the marriage. This she denied, in her answer. On the 28th of April, 1851, an order was made in that cause, requiring the plaintiff therein to pay court fees and alimony to the defendant in that cause; and the same not having been paid, an order was made in that action, on the 16th of October, 1851, staying all proceedings on the part of the plaintiff therein until paid, and the proceedings therein were stayed and suspended. In January, 1852, the defendant went to the state of Indiana, leaving the plaintiff, his wife, in this state, where she has ever since remained. The defendant stated, in his answer, that such residence in Indiana commenced on or about the 3d of January, 1852, and that on the 10th of January, 1853, being at that time a bona fide resident of that state, and having been for more than one year preceding said date a resident of said state, he filed his bill against the plaintiff in this suit, for a divorce. On the 24th of May, 1853, the plaintiff in this suit not appearing, a decree of divorce was granted. In October, 1855, the defendant in this case returned to this state, accompanied by a woman to whom he had been married in Indiana, after the divorce granted there, with whom he has cohabited here. Upon these facts the complaint was filed, the plaintiff claiming that

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such intercourse of the defendant with the woman to whom he claimed to be married was adulterous, and entitled her to a divorce.

S. S. Lyne and F. R. Tillou, for the plaintiff.

B. F. Cowles, for the defendants.

I deem it unnecessary to discuss the many questions presented in this case. It appears to me that it must be disposed of on the authority of Vischer v. Vischer, ( 12 Barb. 643 ,) and the authorities there referred to. The court in Indiana never had jurisdiction of the plaintiff in this case, and the proceedings there, as to her, are void. As remarked by Justice Hand in the case referred to, “ It is a sound principle of law, as well as of natural justice, that no person should be bound by a judgment without being heard.” And he cited a large number of cases to sustain his position. In this state, beside the case of Vischer v. Vischer, above cited, the same principle in reference to divorces was applied in the case of Borden v. Fitch, ( 15 John. 121 .) In that case, the husband being in the state of Vermont, applied there (his wife then being in Connecticut, and never having been in Vermont, and having no notice of the proceedings) for a divorce, which was granted. He came into this state and married another woman, his first wife being still living, and the case turned upon the effect of the divorce granted in the state of Vermont. Thompson, C. J. in delivering the opinion of the court, says that it appeared from the testimony that the former wife never was in the state of Vermont, nor in any manner personally notified or apprised, at the time, of the proceedings in Vermont to obtain the divorce. She did not, in any manner, by her agent or attorney, appear or make any defense against such proceedings. A precisely similar state of facts is presented in the case now under consideration. The chief justice says: “ The final question is, whether such proceedings in Ver

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mont were not absolutely void. To sanction and give Validity and effect to'such a divorce, appears to ine to be contrary to the first principles of justice. To give any binding effect to a judgment, it is essential that the court should have jurisdiction of the person and of the subject matter; and the want of jurisdiction is a matter that may always be set up against a judgment when sought to be,enforced; or, when 'any benefit is claimed under it, the want of jurisdiction makes it utterly void and unavailable for any purpose.”

[New York Special Term,

January 22, 1859.

These positions are well sustained by authority and sound reasoning, and I have been unable to find any case where the force of this has been questioned. We have already seen that it was recognized as law- in the case of Vischer v. Vischer, above referred to, and I feel no hesitation in saying that I am not at liberty to question the binding force of these authorities. They decide the precise point presented in this case, holding a decree obtained as this was to be utterly void and unavailing for any purpose whatever. It therefore follows that it affords no legal justification for the defendant in cohabiting with any other woman than the plaintiff, his lawful wife; and the facts of such cohabitation, and the other facts necessary to entitle the plaintiff to a divorce, a vinculo, being clearly established, I have no choice but to direct á decree for a divorce. A referee may be appointed to settle the proper alimony to be paid to the plaintiff.

Davies, Justice.]