Burton v. Burton — 9 N.Y. St. Rep. 405

Majority

p. 405

Mary M. Burton, App’lt, v. Salmon Burton, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed June 25, 1887).

Headnote

1. Divorce—Plea in bar—What is, in action for.

This action was brought to obtain a divorce. The defendant set up as a bar thereto a judgment recovered by him in the state of Pennsylvania, dissolving the marriage. The parties were married in Nebraska in 1869, and shortly afterward became residents of New York state, so continuing until 1877, when they removed to Pennsylvania. In March, 1879, the plaintiff deserted the defendant and returned to the state of New York, and has' since resided there. The defendant then was and has since remained a citizen of Pennsylvania. In August, 1883, upon the petition of the defendant, a subpoena was issued out of a court of common pleas in that state commanding this plaintiff to show cause at the then next term of that court why the defendant should not be divorced from the bonds of matrimony. Such subpoena was served upon the plaintiff in the state of New York, and such proceedings were thereupon had that judgment was entered in that court dissolving the marriage contract. The cause upon which the action was founded was the.desertion of this defendant by the party plaintiff in this action. Held, that this being a cause for which divorce might be granted in that state, that judgment was a bar to the present action if the court in which it was entered had jurisdiction of the person of the present plaintiff.

2. Same—Decree of—Whbn effectual against party defendant without jurisdiction of court—When not.

Held, that the parties being citizens of Pennsylvania, and this plaintiff having left her husband in that state and come into the state of New York, and this defendant still remaining a citizen of that state, his relation to it under the apparent circumstances characterized that of his wife for the purpose of an action there for a divorce in his behalf, and that as such citizens they were so subject to the laws of Pennsylvania that process might be there obtained by him and served upon his wife, although absent from the state, in such manner as the statute there prescribed, and that being done, jurisdiction of her person would be acquired in support of the proceedings and judgment as effectually as if she had been personally served within the state or had appeared in the action.

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3. Jurisdiction—Of the person of absent defendant—How acquired.

Held, that the service upon a party defendant, not in the state where the action is brought, is purely statutory, and that jurisdiction of the person of the absent party in such case can be acquired only in the manner provided by the statute

4. Same—Open to examination—When.

Held, that the question of jurisdiction of the person of a defendant is one open to inquiry and examination upon the question of validity of a judgment recovered against him.

6. Same—Substituted service—Effect of.

Held, that the process of the courts of a state cannot effectually run beyond its limits for the purpose of taking jurisdiction of person or property in another state because the power of the courts is not extra-territorial. That, however, there may be provision made for a substituted service, and to accomplish such service personal service beyond the state may be authorized, but that jurisdiction is not then acquired by force of the process of the court as such merely, but because the statute has provided that means of constructively bringing the party into court for the purpose of adjudication upon the matters or rights involved, and while a judgment thus obtained may be effectual by force of the statute within the jurisdiction of the court, it may not be elsewhere.

6. Same—Judgment ineffectual against party not domiciled within.

Held, that such judgment would not be effectual beyond the limits of the state as against a defendant not a citizen thereof, while it would be against one domiciled within the state.

7. Divorce—Pennsylvania statute of 1815 relative to—Service— When decree void.

Held, that the statute of Pennsylvania, passed in 1815, relative to divorces, and the manner of acquiring jurisdiction of parties defendant in actions therefor, did not authorize service of such a party without the state, and that the decree of divorce pleaded in bar being based upon such service was void because without jurisdiction.

Appeal from judgment entered upon report of referee dismissing the complaint.

H. C. Kingsbury, for appl’t; John S. Lambert, for resp’t.

The action is for divorce. The defendant alleges as a bar the recovery by him of a judgment, dissolvsolving the marriage, in the court of common pleas of Mc-Kean county, state of Pennsylvania. The referee found and determined that such judgment was recovered by him and that it was a defense in bar of this action; and upon that ground dismissed the_ complaint. The question presented here is whether the judgment so recovered was valid and effectual as against the plaintiff. The referee has found that the parties were married in Nebraska in 1859, that they shortly after became residents of the state of New York, and continued so until in 1877, when they removed to the state of Pennsylvania; that in March, 1879, the plaintiff deserted the defendant and returned to the state of New York, and has since resided there, that the defendant then was and has remained a citizen of the state of Pennsylvania; thet in August, 1882, upon the petition of

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the defendant, a subpoena was issued out of the court of common pleas of McKean county, commanding the plaintiff to show cause at the then next term of the court, why the defendant should not be divorced from the bonds of matrimony; that such subpoena was personally served upon the plaintiff in the state of Hew York, and that such proceedings were thereupon had that judgment or decree was entered in that court dissolving the marriage contract. The record of the judgment was put in evidence, by which it appears, as found by the referee, that the cause upon which the suit was founded in the common pleas was the desertion of the defendant by the plaintiff, which comes within the causes for which a divorce may be granted in that state. Upon the facts as found by the referee his conclusion is supported if the court in which the judgment was entered had jurisdiction of the person of the plaintiff, in that suit. The parties being citizens of the state of Pennsylvania, and the plaintiff having left her husband in that state and come into the state of Hew York and the defendant in this action still remaining a citizen of that state, his relation to it, for aught that appears, characterized that of his wife for the purpose of an action there for a divorce in his behalf, and as such citizens they were so subject to the laws of Pennsylvania that process might be obtained by him there, and served upon the wife, although absent from the state, in such manner as the statute there prescribed, and that being done jurisdiction of her person would be acquired in support of the proceedings and judgment as effectually as if she had been personally served within the state or had appeared in the action. Hunt v. Hunt, 72 N. Y., 217 ; Huntley v. Baker, 33 Hun, 578 . But the service upon a party -defendant not in the state where the action is instituted is purely statutory, and jurisdiction of the person of the absent party can in such case be acquired in the manner only, which the statute provides. Smith v. Wells, 69 N. Y., 600 . And the question of jurisdiction of the person of a defendant is an open one for inquiry and examination upon the question of validity of a judgment recovered against him. There was no service in any manner made upon the wife in the Pennsylvania suit other than personally in the state of Hew York, nor did she appear in that action. It is contended that suck service was all that the statute required and was within its provisions, If that is so the judgment may be supported upon the facts as found.

The statute of Pennsylvania passed in 1815, after declaring the causes for which divorces may be granted, provides as follows: “Section 2. If any person * * * shall be injured as aforesaid, the husband in Ms own proper person

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or the wife _ * * * may exhibit his or her petition or libel to the judges of the court of common pleas * * * where the injured party resides in term time or to one of the judges in the vacation * * * setting forth particularly and specially the causes of his or her complaint, etc. * * * And thereupon a subpoena shall issue from the said court * * * directed to the party so complained against commanding him or her to appear at the next or any subsequent court of common pleas to answer said petition or libel, and upon due proof at the return of said subpoena that the same shall have been served personally on. the said party wherever found, or that a copy had been given to him or her fifteen days before the return of the safhe.” The court may proceed to judgment in the manner there provided.

“Section 3. If upon the return of the said subpoena proof shall be made that the said party could not be found in the said county, an alias subpoena shall issue returnable the first day of the next or any subsequent term and be served personally in manner aforesaid, and if so served the same proceedings shall be had as are directed and authorized in the second section of this act. And if on the return of the said alias subpoena, proof shall be made that the said party could not be found in the said county, the sheriff of the same shall cause notice to be published in one or more newspapers printed within or nearest to the said county, for four weeks successively, prior to the first day of the then next term of said court, requiring the said party to appear on said day to answer the said complaint, at which term or any subsequent term the same proceedings, shall be had as authorized and directed by the second section of this act.”

The proposition must be recognized that the process of the courts of one state cannot effectually run beyond its. limits for the purpose of taking jurisdiction of person or property in another state, because the power of the courts-is not extra territorial. Dunn v. Dunn, 4 Paige, 425; Holmes v. Holmes, 4 Lans., 392 ; Ableman v. Booth, 21 How. U. S., 506; Bischoff v. Wethered, 9 Wall., 812 .

' There may, however, be a substituted service provided. for and to accomplish it a personal service beyond the state authorized, but then jurisdiction is not acquired by force of the process of the court as such merely, but because the statute has provided that means of constructively getting' the party into court for the purpose of adjudication upon the matters of rights involved, and while the judgment, may be effectual by force of the statute within the jurisdiction of the court it may not be so elsewhere. It clearly would not be beyond its limits as against a party defendant

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not a citizen of the state in which the proceedings were had. and judgment rendered while it. would be as against one whose domicile is within the state.

The contention of the learned counsel for the defendant is that the words “wherever found,” in the second section of the statute referred to, authorize the personal service of the subpoena in a divorce case to be made outside the state, and because the wife must be treated as a citizen of that state although residing out of it, the service upon her gave the court jurisdiction of her person and rendered the judgment valid everywhere. This, therefore, presents a question of construction of the statute. And to aid in that respect there are in evidence no other statutes of that state relating to general practice prescribed in respect to the territorial limitations within the state, if any, in which service of process for the commencement of actions and proceedings in- the courts of common pleas of the respective counties may be made, but it does appear by the third section of the act that the failure to find a defendant in the county of the court from which the subpoena is issued is a sufficient reason for resort to the alias subpoena and the substituted service by publication of the process, which tends to show that the personal service may not necessarily be sought beyond the limits of such county, and that the words ‘ ‘ wherever found ” were intended not to restrict the territorial limits within which,the process might be served personally to such county. The enactments of the lawmaking power of a state do not have any extra territorial application, and there is no presumption that they are intended for such purpose, but to the contrary, unless it is clearly expressed. The use of the words referred to may be deemed, to embrace within their application the entire state of Pennsylvania and nothing more. It certainly is difficult to assume that the legislative intent was to authorize the court to send their process into other states and countries to take jurisdiction of persons “wherever found” there, but rather if it had been intended that the process might go or be served beyond the state as an effectual notice of the judicial proceeding, it would have been clearly so expressed. The statute of Pennsylvania does not require that any party other than the plaintiff to a suit for a divorce be a resident of the state, but treats it as sufficient for the purposes of such relief that the party plaintiff shall have been a citizen of the commonwealth for one year, and then a resident of the county in which the suit is brought. And by its terms applies as well to defendants who never have resided in the state as to those who may have done so. The statutory application in terms is alike to both. But if

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the courts of that state have given construction to this statute and the use for which the words “wherever found ” were employed it should be followed, for the views of the courts of the respective states of their own statutes usually govern those of the courts of other states in that respect. A member of the bar of Pennsylvania was called as witness and testified that it had generally been held in the courts of common pleas that service on a party defendant personally anywhere is a good service, and will give the court jurisdiction to “decree a divorce whether served in or out of the state, and that is the law of Pennsylvania.” And on his cross-examination he referred to Harvey v. Harvey, Keen v. Keen and Love v. Love, and remarked that there were some later decisions to which he did not specifically refer. We have examined these cases.

Harvey v. Harvey (2 Weekly Notes of Cases, 225), was in the common pleas in 1875. The subpoena was personally served on the husband (the defendant), in this state, pursuant to order of the court, and there was no publication. On motion to dismiss the libel, the court said: “The personal service on the respondent in a divorce suit when out of the jurisdiction, is matter of grace to him. The practice has been established for forty years. While under the statute nothing but publication was required, yet in a matter of such serious importance, ” personal notice should if possible be given. “ The directions to advertise under the act should be strictly followed. Personal service may be superadded if you will.”

Keen v. Keen (id, 492) was also in the common pleas, and motion was made for an order on the sheriff' of Philadelphia county, to delegate the sheriff of Chicago to serve the subpoena in divorce. The court in denying the motion, remarked: “We have no jurisdiction over any officer outside the commonwealth. Service by the sheriff, of course is best, but it is not necessary, as personal service by any one accompanied by the proper affidavit is all that the statute requires.” ,

Love v. Love (10 Phila. R., 453) was in the common pleas. The wife was defendant ana had deserted her husband, the plaintiff, in Pennsylvania, and gone to Missouri, where she had since resided nine years. Held, That the statutory notice was not effectual, because she was not a citizen of Pennsylvania; that the statute of the state has no force beyond its territory, and that she may plead against the judgment for want of service within the jurisdiction. Divorce was denied.

Our attention has also been called to Snyder v. Snyder (id, 306), in the common pleas, where objection was taken that the defendant, the husband, residing in Massachusetts,

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had not been served by publication, but personally only, and the court said: “An advertisement is only a less efficacious mode of giving notice, and when the better plan is available and is resorted to, it is certainly ño just cause of complaint. The act also says that the subpoena is to be served on the defendant wherever found, and although there may be an argument in case there had been no personal service that the word wherever,” referred to the limits of the state, yet where there has been actual service, the defendant is certainly estopped from objecting that the notice was not given in the manner which would have been less likely to have reached him.” In Ralston’s Appeal ( 93 Penn. St., 133 ), the husband, a resident of Philadelphia, instituted a suit in the common pleas for a divorce, and the process was served personally on the defendant, in the state of Delaware, where they were married in 1865. The husband afterwards became a resident of Pennsylvania, and the wife remained in Delaware. The court held that no jurisdiction was acquired of the person of the defendant, and by the opinion delivered by Mercur, J., on. motion for reargument, the court said: “If a legal service could thus "be made in Delaware, it can be in California. Such cannot be the true construction of the statute. The language “wherever found” cannot be so construed as to give to a court of this state extra-territorial power to bring within its jurisdiction the person of a citizen and resident of an other state. The service of a subpoena in divorce thus made in another state on a resident thereof for the purpose of giving jurisdiction of his person, is not authorized by any law. If any such practice has prevailed, it is a vicious one and should be abolished.”

These are all the cases of the Pennsylvania courts to which our attention has been called or that we have been able to find relating directly to this statute and its effect. They do not seem to establish the construction contended for by the defense. The Ralston Case is the latest of them and is the decision of the highest court of the state. And while it does not necessarily determine that notice may not be given to a citizen of the state by personal service upon him beyond its boundaries (which we assume may be done "by way of substituted service when the statute so provides), it is clearly not authority in support of the defendants’ contention, but its tendency is to the effect that such service merely, gives no jurisdiction of the person of a defendant.

And treating the question as one of construction of the statute only, we think the words, “wherever found,” in the statute, do not embrace other states and countries as those within which the personal service can be effectually

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made to bring a party into court. It, therefore, is unnecsary to further consider the domiciliary status of the parties-respectively or any other question.

The judgment should be reversed and a new trial granted, costs of this appeal to abide the final award of costs.

Smith, R. J., and Haight, J., concur.