
    COURT OF APPEALS.
    James J. O’Dea agt. Mary O’Dea.
    
      Jurisdiction in Divorce Proceedings — Effect of a foreign Divorce.
    
    Where defendant, a resident of Canada, was married in 1844 to K. in this-state, and lived with him until 1860, when she returned to Canada, and he went to Ohio and there obtained a divorce for desertion. A copy, of the summons was sent to her by mail, and she was present at the taking of the deposition, but took no part in it. She afterwards married plaintiff, he knowing the fact of her former marriage, and he now asks a divorce on the ground that she had a husband living at the time of her marriage.
    
      Held, that the divorce obtained in Ohio was without jurisdiction, and so null and void, as was also the marriage in this state, and the divorce should be granted (Danfort, Miller and Pinch, JJ., dissenting).
    
    
      Decided December, 1885.
    It appears by tbe complaint that the parties intermarried in this state on the 30th day of August, 1866, and from that time, until shortly before the commencement of the action in 1880, lived and cohabited together asman and wife. The husband. sued to have the marriage contract declared void, and the marriage annulled, upon the ground that at the time it took place -a former husband of the defendant was living, and the marriage with bim tben in full force. Tbe defendant, by answer, - denied all tbe criminatory allegations. Tbe referee before whom tbe issue was tried found, upon evidence sufficient, if admissible, that in July, 1844, tbe defendant resided in, and always before that time bad been a resident of Toronto, Canada West, but at 'that date was married in-Lewiston, in this state, to one K., and lived witb bim as bis wife until January, 1860, when she left bim and returned to Toronto, where she continued to reside -until 1865, and be removed from this state “ to, and became a resident of, Cuyahoga county, in tbe state of Ohio,” where, in March, 1864, and after a residence of more than one year, be - commenced an action in tbe court of common pleas of that - county “ for tbe purpose of obtaining a divorce from tbe defend- . ant in this action, for tbe reason, as stated in tbe petition tben filed, that she bad been willfully absent from him for three years or more; that a copy of this petition, and of tbe summons issued thereon, were, on tbe 24th of March, 1864, sent by mail to tbe defendant at Toronto, where she tben resided, and were received by her soon after; that by said summons she was re- ■ quired to answer in tbe action by tbe 9th day of April, 1864; that a notice of tbe fihng of tbe petition, and of tbe purpose thereof, -and that said petition would be for bearing at tbe May term of said court of common pleas, and that depositions would be taken in Toronto at a time and place mentioned, were duly published in a newspaper in said Cuyahoga county; “ that on •the 20th day of April, 1864, depositions in said action were taken in pursuance of said notice; that tbe defendant was present when such depositions were taken, but took no part, personally - or by counsel, at tbe taking of tbe same; that no other service of tbe process or proceedings in tbe action was made upon tbe • defendant than is above stated; and that such service, so made, ■was, according to tbe laws of tbe state of Ohio, a legal service -upon tbe defendant, but that she never in any way appeared in ■said action.” It also appeared that on tbe 24th day of May, 1864, the Obio court, upon tbe proofs, found tbe facts stated in ■the petition to be true. That tbe defendant was willfully .absent from tbe petitioner without cause, for more than three years anterior to tbe filing of tbe petition, and bad at all times remained so willfully absent from him, and therefore it was •decreed that tbe marriage contract alleged in tbe petition, and theretofore existing between tbe parties, be and the same was “ declared annulled, canceled, and void, and no longer binding •on tbe parties,” and each “was restored to tbe rights and privileges of unmarried persons.” Tbe referee further found that tbe ■defendant afterwards married tbe plaintiff, and lived with him -•as above stated. It appeared from uncontradicted evidence that be knew tbe person be was about to marry bad been a wife, and was not a widow; that be also knew of tbe divorce proceeding during its pendency, and in 1864 was informed of tbe result, but tbe referee finds that’“be bad no knowledge of tbe particular manner or circumstances under which the divorce was obtained;” and that when tbe plaintiff and defendant married, BL was living in Obio, and is still living there. As conclusions of law tbe learned referee found that tbe court “ of common pleas of Cuyahoga county, Ohio, never acquired jurisdiction over tbe person of tbe defendant in tbe proceeding prosecuted in that court, and therefore that tbe decree made :and entered in it was without jurisdiction, and so void and of no effect.” He directed judgment in favor of tbe plaintiff, ■declaring bis marriage with tbe defendant to be illegal and void. After judgment, it was reversed by tbe general term, and a new •trial granted. From that order tbe plaintiff appeals.
    
      George J. Greenfield, for appellant
    
      Be Lancey Orittenden, for respondent
   Per Curiam:

We think the Case of Baker (76 N. Y., 78) is conclusive on tbe question brought up by this appeal, viz.: Whether the court in the state of' Ohio had jurisdiction to try the issue raised by the petition of EL, as between him and his-, wife; she then being a non-resident of Ohio, and never a resident of that state, nor at any time there served with process of the court There are some differences in the details of the-circumstances of the two cases, but we think not enough to lead to any change in the result, nor sufficient to require a reconsideration of the law affecting it. The Baker Case was of great, importance, involving, as it did, the liberty of a citizen. It was most fully argued, and we do not perceive that the discussion in the case at bar has developed any new principle, or brought to light any authority which was not then weighed by us. We-do not think the question can be more fully investigated. Concerning the result there was, it is true, a dissent by the late learned chief judge, and the opinion recognized the fact that in other states judgments contrary to the authorities followed in this state had been rendered. This conflict of opinion, however much to be regretted, continues, and it yet remains for some ultimate authority to relieve the point from the difficulties now attending it, and determine the civil rights of parties whose-relations, as legally defined by different state tribunals, are-liable to be regarded on one side of the state line as matrimonial, and on the other side as meretricious.

Adhering, however, to the rule established in this state, a majority of the court are of opinion that the order appealed from should be reversed, and the judgment of the special term affirmed, but without costs.

Ruger, C. J., Rapallo, Andrews and Earl, JJ., concur.

Danforth, J.

(idissenting). — The jurisdiction of the supreme-court to grant the relief sought for in this action is purely statutory {Code, sec. 1745). and depends upon the existence of two-facts there stated, and in substance repeated in the complaint: (1) That the former husband was living at the time of the marriage in question; and (2) that the marriage between that former husband and the defendant was then in force.

As to tbe first, there is, upon the evidence, no dispute. The controversy is over the second, and is to be determined as effect is given or denied to the judgment rendered by the Ohio court. In Kinnier agt. Kinnier (45 N. Y., 535), full effect was given to a judgment of divorce granted by a sister state, although for a cause not deemed srrfficient in this state; while in People agt. Baker (76 N. Y., 82), it did not avail the defendant who set it up. In the Kinnier Case the plaintiff was the second husband, and unsuccessfully invoked the judgment of the courts of this state to annul his marriage. There both parties to the divorce proceedings were in the state when they were had, and parties to the suit. In the Baker Case the" defendant was served with process by publication only, and his second marriage was held to be bigamous. The present suit was commenced soon after the determination of the Baker Case, and, as stated on the argument, was suggested by it. The learned counsel for the appellant now relies upon it as furnishing a decisive answer to the decision of the court below.

The judgment in Baker's Case (76 N. Y., 78), was in assumed compliance with the rule theretofore uniformly laid down by the courts of this state, and is to be followed as a precedent in similar cases, but it should be taken in connection with the facts which seemed to warrant it, and, so taking it, I feel at liberty to dissent from the conclusion of the majority of the court in the one at bar, and more readily because a limitation to the doctrine appears to have been in the mind of the court in that instance. In the language of the learned judge, whose opinion declared the views of his brethren: “ It presents this question: Can a court, in another state, adjudge to be dissolved and at an end the matrimonial relation of a citizen of this state, domiciled and actually abiding here throughout the pendency of the judicial proceedings there, without !a voluntary appearance by him therein, and with no actual notice to him thereof, and without personal service of process on him in this state? We assume, in putting this proposition,” says the learned judge, “ that the defendant in error was in the situation therein stated. We think,” lie adds, “that it may properly be thus assumed." And that importance was attached to this assumed situation oi Baker is apparent, not only from the care taken in stating the proposition, but by the argument by which it is sustained in the face of some evidence to the contrary.

It appears, then, in the Baker Case (1), that the person whose rights the court in Ohio sought to affect is not only characterized as being at the time a citizen of this state, but as one actually abiding here during the judicial proceedings which were aimed at him. In -the case at bar the defendant in the divorce suit was neither domiciled nor a resident in this state, nor was she" within its borders during the pendency of the proceedings therein. She was either domiciled in Ohio, because her husband’s domicile was there, or she was domiciled in Canada, tc which place she went, and where she resided. The latter place it is said was her domicile of choice. Assuming that to be so— that her husband’s domicile was in Ohio, and her own in Canada — the question is, whether the proceedings instituted by him were valid by the laws of those two places. Yalid by the laws.of Ohio they are conceded to have been, and there is no finding or evidence that they were not valid also by the laws of Canada (2) In the next place there was in the Baker Case no notice of the proceedings save by publication. It is clearly implied, in the proposition I have quoted, that if (1) the defendant had voluntarily appeared in the divorce suit; or (2) been personally served with process in the state where it was pending; (3) had actual notice of the suit — a different conclusion would have been warranted and effect given to the judgment of the Ohio court. The whole argument of the learned judge was to show that the admission of the judgment of a court of a sister state to credit and effect in another was subject to limitations, and that it could be received only when it did not violate those principles which morality, or its standard of public policy, or municipal regulations, require to be specially observed in the state in which the party relying on the foreign judgment had chosen to introduce it “ There is no principle of comity,” he says, “ which demands more; ” and so the ultimate question is treated by him as one of expediency, but requiring, nevertheless, the rule of the foreign law to be adopted. “ Quoiinus sine pr&juclicia indulgentiam fiere potest.” It was not intended to deny the well-settled rule that where judgment has gone against a party in the state of his residence, or where, not being a resident, he has voluntarily appeared in the action, or where he has been served with process within the state where the action is pending, and so has been brought under the authority of its courts, then, under the provisions of the constitution (art. 4, sec. 1), and the act of congress (U. S. Rev. Stat., sec. 905), the judgment is of the same force and validity in other states as in the one where it was rendered. But where the jurisdiction of the court rests only on the fact that the moving party had his domicile within such jurisdiction, its claim to recognition in other states rests on the ground of comity, and this cannot prevail where the judgment sought to be accredited has been rendered without giving the party to be affected an opportunity to be heard. But, as I understand the Baker Case, it concedes that this rule does not inexorably require either service of process or .voluntary appearance, but may be satisfied when the party has in any way-been given an opportunity of being heard before judgment; or, in the language of the third condition of the question stated (supra) in the Baker Case, has had “ actual notice ” of the judicial proceedings.

In Doughty agt. Doughty (27 N. J. Eq., 315; S. C., 28 id., 582), the court treat the question of jurisdiction in a divorce suit arising out of the status and domicile of one of the parties, in the same spirit in which it is treated in Baker's Case (supra), and cite'the New York authorities; but the court say: “A judgment of divorce, proceeding from a jurisdiction founded on domicile, would not contravene essential rules of natural justice if actual notice to appear’ had been served on the defendant residing abroad. It is true that a notice so served on a litigant out of the jurisdiction in which a suit is pending may add nothing to the judicial right to take cognizance over the cause, but, nevertheless, it may impart a quality to the resulting judgment that will serve as a credential to it in a foreign jurisdiction,” and refuse to. accept the one then in question, for reasons like those given in Baker’s Case, saying: “ The residence of the defendant to it was known. She was not summoned, she did not appear, and she was not served with process, nor was notice given to her.”

Indeed, as the object of all-' service is to give notice to the party on whom it is made, that he may be aware of and may resist the relief sought against him, when that is substantially done, so that the court may feel confident that service has reached him, it would seem that everything has been done that is required This is said in Gibbs agt. Insurance Co. (63 N. Y., 114, 127), and is repeated in Pope's Case (87 N. Y., 137, 140), with the addition that any service which reasonably accomplishes that end answers the requirements of natural justice and fundamental law. Indeed, it is difficult to see how it could be otherwise. We hold it enough, within the strictest rule, to serve process upon a defendant, although he is in transit; passing through the state, neither abiding there, nor having any intention to remain. Of what less real and substantial efficacy, for all beneficial purposes, is the actual delivery of the paper outside the limits of the state? So, as against a domiciled citizen of a state, a judgment rendered upon such substituted service is, by the law of the state, permitted, although he is, in fact, absent, and it is valid and binding upon him, though he is actually abiding in another state, and has neither appeared in the suit nor had actual notice of it. His absence, whether temporary or prolonged, makes no difference (Hunt agt. Hunt, 72 N. Y., 217). The same principle of comity is applied in favor of one claiming title under a foreign law, as In re Waite (99 N. Y., 433; S. C., 2 N. E. Rep., 440), where, after a most exhaustive and elaborate examination of authorities, it was decided, upon those and upon principle, that while the statutes of foreign states have no force or effect within this state, and hence the statutory title of foreign assignees in bankruptcy can "have no recognition by virtue merely of its origin, yet that the comity of nations permits a certain effect to be given to titles ®o derived, when it can be allowed without injustice to our own citizens. So, in many other instances, effect is given, by way of •comity, to the laws of other states, as in recognizing an administrator or guardian appointed under another jurisdiction. He may not act de jure, but it does not follow that his claim to property or to the care of a minor is to be denied.

In the case at bar it was shown that the process from the Ohio court was actually delivered to the defendant, and received by her, and, moreover, that she was personally present •at the taking of depositions in the case on the part of the plaintiff; going thither, the proof is, “because she had been notified.” Now, although it may be said that, within the strict rules of law, she was not made a party to the adjudication, it cannot be 'doubted that, under the argument in the Baker Case, and the .■authorities to which I have referred, the defendant had all the notice which reason' and natural justice requires should be .given, and that by it all danger of imposition upon the party or the court was excluded.

(3) In another respect, although of much less importance, there is a third difference to be noted in the relation of the two •cases to our law. At the time of the decision of the Balter Case (January 21, 1879), an order for service by publication, or without the state, in a divorce case, could only be had where the defendant is a resident of the state ” (New Code, sec. 438, sub. 4), and to that fact reference was made in the opinion; but those words were, by a subsequent amendment — Laws 1879, June 20 (Sess. Laws 1879, chap. 542)—stricken out, and the ’law restored to its original condition, so that now judgment in this state may be rendered against a non-resident defendant in ■a matrimonial action either for a separation, a divorce absolute, or an annulment of a marriage, upon service of the process upon him or her outside of the state, or by publication. It is apparent, therefore, that the subject was before the legislature for deliberate examination, and their conclusion will not permit us to say that public policy is opposed to such proceedings as those in Ohio, now under review; for it authorizes the doing in this-state of the same thing, in the same manner, and with the same object Moreover, as if to remove any inequality in applying it, and relieve -the married woman from the traction of that legal fiction by which she is supposed to follow and be with her husband, although in fact separated by intervening continents, it provides that if she dwells within the state when she commences an action for divorce or for separation, she is deemed a. resident thereof, although her husband resides elsewhere (sec. 1768). It also directs judgment-when default occurs in appearing or pleading, whether the summons and complaint has been personally served in the state, or whether service has been made by publication, and this is so whether the action is to annul the' marriage, or for a divorce, or a separation (sec. 1774). The law of procedure under which the Ohio court acted was precisely like our own, and I can find.no circumstances in the case-which require us to depart from the rules of comity, which exact consideration for the laws and judicial proceedings of' other states, and on which we depend for respect to,our own.

I have so far looked at the case from the appellant’s standpoint, and treated the rights of the respondent as if she had made herself in Canada a domicile separate from that of herhusband. Even in that view, I think the learned court below committed no error in holding that there was no substantial ground upon which the plaintiff could invoke its interference, and that the case was not one which required the marriage between these parties to be annulled. But another, and I think correct,, statement of the respondent’s position, permits us to-say that her domicile was, at the time of the divorce proceedings, with her husband in the state of Ohio; and in that respect, also, the case difiers from the Baker Case. Except as altered, by statute, the rule of the common law, which identifies the-married woman with her husband, is adhered to by the courts of this state, and upon the question now before us its decisions-require us to hold that the domicile of the husband is prima. fade .that of the wife, not only because tbe home of one is the-home of tbe other, but because it is ber duty to go witb him where be goes, and dwell witb Mm where be dwells. Indeed,'' under tbe maxim referred to, it could not be otherwise. Onfe' in person, and that person tbe husband, tbe common law by no-fiction could give ber a separate domicile, nor even admit of its' possibibty. Therefore,-in Baker’s Case, tbe'wife, plaintiff in tbe divorce proceeding, in theory of law bad ber domicile witb ber husband, and thus both were residents and citizens of this-state. In tbe case before us tbe husband was a legal citizen of Ohio, and tbe defendant’s domicile, by virtue of tbe same-' theory, also in that state. But in Hunt agt. Hunt (supra), it is ' said that, “from necessity,” “she may, in certain cases, have á ■ domicile in another jurisdiction than that of ber husband, as; when they are living apart, under á judicial decree of separation, or when the conduct of tbe husband has been such as to entitle tbe wife to an absolute or limited divorce,” and so tbe reason of tbe rule weakens in power when, in extreme cases, tbe conduct of tbe husband has been such as to make it proper for tbe wife to seek relief from ber obligation to have tbe same-home and interest witb him, and altogether ceases when a judicial decree has separated and adjudged them to bve apart. These exceptions are justified, tbe first upon tbe ground that otherwise “ tbe husband might constantly change bis domicile, and, drawing that of bis wife after bis, prevent ber finding a court having that- jurisdiction of person which would enable ber to try ber suit for redress and relief.” “It is evident,”' says tbe learned judge, “ that this reason,” by which I understand him to mean tbe reason of the rule, viz., tbe theoretic identity of person and of interest between the husband and tbe wife in tbe eye of tbe law, “ will also operate in favor of tbe bus-band, so that, where be has ground for a suit by reason of tbe • misconduct of tbe wife, she may not so often change ber domicile as to baffle Mm in bis pursuit of a remedy.”

Now, in tbe. case before u's, no ground can be found upon-'which either exception can be placed. By deliberate stipulation in this case, it is conceded that the defendant in the Ohio suit, that is, the wife, left her husband, the plaintiff in that suit No fault or error in behavior, or bad treatment on his part, is suggested. On the contrary, the record shows that at the time of the commencement of the suit, in December, 1864, she had been willfully absent from him for more than three years; that he had applied to her to live with him, and she had refused to -do so; that always, while they lived together, he had provided well for her and treated her properly. The referee also finds that she left her husband. He did not go to Ohio to evade the law, nor to procure a divorce, nor to draw her from a friendly .jurisdiction. She left him. He went to Ohio in good faith to reside, and acquire a domicile, and he has since resided there, mow nearly twenty years. So far as appears he was without fault, and the removal of his wife entirely without cause, and willful. Upon what ground, then, has she acquired a separate domicile ?

The chief case cited Dy the appellant is Borden, agt. Fitch (15 Johns., 121), which is relied upon as “ an express decision to the effect that the acquisition of a new domicile by the husband does not draw the wife into the same jurisdiction.” It furnishes no exception to 'the rule laid down in Hunt agt. Hunt (supra). Fitch and his wife were inhabitants of and domiciled in Connecticut. They lived together there until October, 1808, when, upon her application and notice, and appearance and contest by him, the general assembly of that state, for abundant cause, decreed a separation at her pleasure, with, to her, “ the privilege of a feme sole," and alimony to be paid by him annually. At all times after, she continued to reside there, but in 1813, upon an allegation that she had willfully deserted him, he obtained in Yermont a decree of divorce. He afterwards married in this state, and was shortly afterwards sued by the second wife’s mother for debauching her daughter. He relied upon the Yermont divorce, but without success; the court holding that the ■act of the legislature of Connecticut should be deemed a divorce ■a mensa et thora, and involved a legal separation, and so the case was brought within the first exception-1 have referred to, viz., a separation by judicial decree, or, what is of equal or greater effect, a legislative enactment

I do not thinlc it necessary to inquire how the case would •stand if the husband had deserted his wife. Such a case is not before us. Until we are prepared to give up the common-law rule, as respects the relation and unity of man and wife, we -cannot hold that the wife, at her pleasure and without cause, may establish a separate residence ór a domicile beyond the man’s control. It may be conceded that a judgment obtained •as was the one we have considered, would be of no effect as • against the person, nor as one in rem, except as it was enforced •or took effect within the state; but it cannot be doubted that Che courts of Ohio had jurisdiction over the plaintiff, K., and over the subject-matter of the suit instituted by him. The judgment had force within that state, not only as to him, but ■ the defendant should she go therein. No marital right could be claimed by her. Moreover, by marriage a status is acquired which implies, not only membership in a family, with certain ¿rights, but a relationship in which the state is interested, and which, therefore, is subject to its control; and, however re- ■ garded, it is apparent that a judgment in the rendering of which ‘.the court exercised such jurisdiction as it did in this case must have a very different influence from one of any other character. 'The distinction is conceded in the cases before referred to (Hunt agt. Hunt, People agt. Baker, supra), and distinctly declared in Pennoyer agt. Neff (95 U. S., 714), where the effect of judgments ■ obtained without personal service of process, in actions against the person or property, or to establish' a status, is considered. In the first it is said to avail nothing; in the second, to be good against property within the state whose courts render it, but not out of it; in the last, to determine the status or condition of the resident by dissolving the marriage tie, and, therefore, neees¿•sarily precludes the other party from asserting, or any court in any state from holding, that the marriage so dissolved exists or is in forca

'It follows, I think, that the'true and safe rale is as stated by Cooley on Const. Lim., 400, that the actual bona fide residence of' either husband or wife within a state will give to that state authority to determine the status of such party, and to pass upon any questions affecting his or her continuance in the marriage • relation, and that the courts of that state, authorized by its legislature to take cognizance of the subject, may lawfully pass upon such questions and annul the marriage for any cause allowed by the local law; that jurisdiction over the opposite party may be acquired in such manner as the legislature may direct; and,, whether by service in or notice out of the state, or by publication, is sufficient to justify a decree changing the status of the complaining party, and thereby terminating the marriage. By holding otherwise we declare our own statutes (Code Civ. Pro., § 438, sub. 4, and § 1774) upon the same subject unavailing,, and compliance with them a useless and idle formality.

There is another proposition yet to be considered and answered in his favor before the plaintiff can succeed on this appeal. The Baker Case (supra), however much or little it may be regarded as differing in principle from the one before uS, brought before the court a very different case, arising under a different statute. His conviction for bigamy was upheld because he contracted a. marriage in this state in violation of the act concerning divorces, and for the purposes of that act, and proceedings for its violation, and the punishment of bigamy, it was evidently thought. immaterial whether his first marriage was “in force” or not. Referring to the claim urged for the prisoner, that our laws permitted such proceedings as were had against him in the Ohio court, the learned judge says: “This is but to say that, on the principle of the comity of states, we should give effect to this judgment “But,” he continues, “this principle is not applied where the laws and judicial acts of another state are contrary to our own public policy, or to abstract justice or pure morals. The policy of this state always» bias been that there may of right be but one sufficient cause for divorce a vinculo, and this policy has been upheld with strenuous efforts.” The divorce in question was not for that cause, and it was not to be recognized. Under those laws a person whose guilty act has made divorce possible cannot marry a second time, if merely the former wife or husband is living (2 R. S., 39, secs. 5, 6). Those are the words of prohibition, and, to bring a party within them, it is necessary only to show (1) a prior marriage; and (2) that the parties thereto are living. “ It does not import that the relation still continues, or, on the other hand, that it has ceased. Upon that point it is silent, but limits the inquiry to the dry fact whether the person with whom the prior marriage was contracted still lives at the time of the subsequent marriage” (Cropsey agt. Ogden (11 N. Y., 233). In that case, in answer to the claim of counsel that the prohibition of the fifth section should be read as if it said “ during the lifetime of any husband or wife to whom the party was formerly •married,” the court declined to do so, saying: “The meaning would be very much altered if we should yield to the request So read, it would or might import that the relation of husband and wife must still continue between the former husband and wife, at the time of the subsequent marriage,” adding: “ The word former,’, as used in the section in question ” (sec. 5), “ imports that the relation of husband and wife once existed, but neither affirms its existence nor denies its termination.”

. The prohibition, then, relates to the case of either party to a marriage whenever and wherever contracted, both the parties to which are living, and prohibits either to contract a second or subsequent marriage during the life-time of the other, except in certain specified cases. This construction has recently been approved with great significance in overruling Hovey's Case (5 Barb., 117), where it was held by the supreme court that, after the dissolution of a marriage for adultery, the marriage contract was at ah end, and the relation of husband and wife no longer existed between the parties; and if the guilty party marries again he is not within the penalty of the act against "bigamy; but Faber's Case (92 N. Y., 146), we held that, for the-purpose of enforcing the statutory prohibition, a person against whom a divorce has been obtained, is regarded by the statute as having a husband or wife living so long as the party obtaining the divorce lives, and that a conviction could be had, although the former marriage had been dissolved. Whether the former marriage was in force or not at the time of the offense, then was entirely immaterial. The statute (Code Civ. Pro., sec. 1742) brought before us by this appeal permits no ■ such construction. It adopts the language of the former statute, but adds a new term to it “An action,” it declares, “ may be maintained to procure a judgment declaring a marriage contract void, and annulling the marriage, if ” at the time of the marriage “ the former husband or wife of one of the parties was living,” and the marriage with the former husband and wife was then in force. This last condition requires the interpretation which the court, in Cropsey agt. Ogden (supra), refused to give to the one first referred to. One is satisfied with the fact of a former marriage, and the present existence of the parties; the other requires as much, viz.: (1) A former marriage; (2) the the present existence of the parties; and, also, (3) that the former marriage itself be then in force. Now, in Baker's Case (supra), the court says (p. 84): “We must and do concede that a state may adjudge the status of its citizens towards a non-resident, and may authorize, to that end, such judicial proceedings as it sees fit, and that other states must acquiesce so long as the operation of the judgment is kept within its own borders.”

. So is the whole argument of the learned judge. Hence, he says: “ If one party to a proceeding is domiciled in a state, the•• status of that party, as affected by the matrimonial relation, may be adjudged upon, and confirmed or changed in accordance with the laws of that state.”

The claim was indeed made that the state where the other party was domiciled, might exercitee over him or her the same jurisdiction, and so apply the statute against bigamy. But that • does not contain the governing words of the other. And even. if, within that opinion, the courts of Ohio could not declare the status of the defendant in this state, it could and it did lift the ■ marriage yoke from off the. neck, of its citizen, relieved him from the “ vinculum matrimonii,” and hence, although the parties to the former marriage still lived, one of them was confessedly relieved from all his marital obligations and legally disabled from enforcing those of the other. She had no husband, at least, in the state where he lived. The contract was no longer binding on him. It follows that the former marriage cannot be said to have been in force at the time of the marriage which is the subject of this action.

When the statute speaks of a “ marriage then ” (at the time ■ of the second marriage) “in force,” it must mean a marriage by which both parties are bound, and as to which the relation of ' neither party has been changed. What is the allegation of the • plaintiff here — his whole case ? That KL, living in Ohio, is the • husband of the defendant, and the marriage “in full force.” Neither assertion is true. As to EL it must be conceded, under - any aspect of the case, the marriage is dissolved, and, under any view of the law, that he is discharged from the marriage bond.. The judgment operates upon him in Ohio, attaches to and determines his relation and character. In Moore agt. Hegeman (92 N. Y., 521), commenting upon a similar statute of New Jersey, it was said to be very clear “ that it had in contemplation a wife or husband who had not been divorced, and who •• was invested with all the marital rights conferred by a lawful marriage.” If I am wrong in supposing that the facts of this . case are not enough to bring it within the proposition on which the opinion in Baker's Case (supra) stands, then the defendant. here might be found guilty of bigamy, because the policy of our ■■ law recognizes no divorce save for one cause, and that not the one alleged against her. But there is nothing in that decision.-, which requires us to hold that the former marriage was in force - when the second was solemnized. On the contrary, the necessary result of the opinion is that the Ohio decree was good, as changing the status of the wife, but not effective in this state to protect iter from the imputation of bigamy. If the status of the wife -was changed, the marriage was not in force; and, in view of these conflicting conditions, the learned judge recognizes the hardship of being “ a husband in name and under disabilities . or ties in one jurisdiction, and single and marriageable in an- • other.” If the law is to be so rendered, and this defendant put in that position, it will still remain that the plaintiffs case was not brought within the plain language of the statute. It certainly cannot be said .that the former' husband, as to whom, -even under the doctrine of the Baker Case, the dissolution of marriage is absolute, can in any degree be held united to the -defendant by the tie which such a relation implies. I think the decree put an end to the contract. But if it had only a partial operation, the marriage cannot be said to be in force; -and that the statute requires as a condition of jurisdiction.

One other question remains: Was the evidence on which the referee put his decision competent ? Public policy forbids that a marriage should be dissolved either by the mere consent - of the parties thereto, or by a judicial proceeding which has no other foundation than their admissions. Were it otherwise, -the morals of the community would be easily corrupted, and the forms of law made effectual in the profanation of marriage. ’"Therefore the Code, which has changed the common-rule as to the competency of witnesses in civil actions, forbids husband • or wife testifying, in an action for divorce on the ground of .■adultery, to any matter save their marriage. What cannot be - done by their testimony should not be done indirectly by any . act of theirs, neither by admission in pleading, nor by stipulation of counsel. Here we find- no evidence of the fact of • the former marriage. The pleadings, indeed, concede it, and .-counsel have stipulated that it took place. Neither of these things can have any efficacy, except as they were authorized by the parties; .and their admission or statement, however ■ formally expressed, should have no effect when their testimony . as witnesses is excluded. Neither will the law permit such a judgment by default, although in other actions the silence of tbe defendant is effectual as an admission in favor of tbe plaintiff. Tbe fact pleaded, and tbe fact stipulated, is tbe vital one in tbe case, and to permit a divorce under sucb circumstances is practically to concede that a relation in tbe continuance of wbicb tbe state bas an interest may be dissolved, as it was formed, by tbe simple agreement of tbe parties.

I bave examined tbe cases wbicb, as cited by tbe appellant, seemed to bear upon tbis question, but find none which requires a different conclusion from- tbe one expressed. In my opinion, therefore, tbe learned court below did not err under the cbcumstances.of tbis case,, in whatever aspect they may be viewed, in refusing to annul tbe marriage between tbe plaintiff and tbe defendant. They might well bold that tbe plaintiff’s case was not proven, or, if there was irregularity in tbe proceedings of tbe court of- Ohio, waive it in a spirit of comity, and accredit tbe judgment, rather than pronounce a relation wbicb for nearly twenty years tbe parties treated as lawful, to bave been adulterous. They might also bold that tbe judicial proceedings in Ohio were effective, and that tbe interest of society, and justice to tbe parties, required that respect should be given them.

I think tbe order appealed from should be affirmed, and tbe defendant bave judgment absolute, dismissing tbe complaint.

Miller and Finch, JJ., concur.  