
    KINNIER against KINNIER.
    
      Supreme Court, First District; Special Term,
    
    
      March, 1868.
    Complaint fob Divoece.—Fbaudulent Judgment.
    A complaint filed to procure a marriage declare d void, charged that when defendant married plaintiff, she had a husband living; that she represented to • the plaintiff that she had procured a divorce from such former husband; but that the divorce was void for fraud and collusion practiced in procuring it.
    
      Seld that the complaint was insufficient to warrant an action. If the parties to the former marriage colluded to procure the divorce, it was binding upon each of them; neither could impeach it; and the second marriage was valid, as against them both, and consequently binding on the plaintiff!
    Demurrer to complaint
    The action was brought by husband against wife to have a marriage declared void The complaint" averred that the defendant was married in Massachusetts, in 1848, to one Pomeroy. In 1855, Pomeroy, with intent to evade the laws of Massachusetts, went to Chicago to procure a divorce, for causes which were not recognized by the laws of Massachusetts, and commenced a suit for that purpose. The defendant went to Chicago, and appeared in said suit, and put in an answer. The plaintiff put in no replication, as he was bound to do by law, whereby the answer stood confessed. The parties, by collusion, on September 19,1855, procured to be entered and docketed a formal decree of absolute divorce. The complaint charged that, this decree was fraudulently procured by unlawful collusion, and was a nullity by the laws of Massachusetts and Rlinois.
    It also alleged that on June 28, 1861, the plaintiff and defendant did attempt to contract a marriage; the defendant representing that she had been divorced.
    The prayer for relief, was that the Illinois decree might be adjudged to be fraudulent and void, and the attempted contract of June 28, 1861, to be a nullity, and never to have had any legal existence; and that the defendant might be barred from dower.
    ■ Two grounds of demurrer were assigned; 1. Want of jurisdiction ; 2. Insufficiency of the complaint.
    
      Clarence A. Seward, for the demurrer.
    I. This action can only proceed under the provisions of the Revised Statutes (2 Rev. Stat., 142); apart from which authority this court has no jurisdiction to annul a marriage. (Burtis v. Burtis, Hopk. Ch. R., 559; Pugnet v. Phelps, 48 Barb., 566; Jarvis v. Jarvis, 3 Edw. Ch., 462.)
    II. The plaintiff has sued the defendant by his name, and as his wife, thereby admitting the marriage contract, and cannot evade the statute by alleging that it was merely an “ attempt” If the cause of action, therefore, is not within the provisions of the statute, this court has no jurisdiction over the case.
    M. The complaint seeks to present two grounds of jurisdiction : 1st. Fraudulent representations by the defendant as to the validity of the Illinois divorce ; 2d. The absolute illegality of the Illinois divorce, leaving in force the defendant’s former marriage. The first ground is inconsequential and untenable. No representations as to the divorce could have induced the second marriage. The alleged representations are not of a kind which equity regards as constituting such. fraud as requires the dissolution of the marriage contract. The frauds which equity relieves against are those which are perpetrated by force or duress, or those which concern property, or affect the rights of property. (1 Day’s Cases in Error, 111; Clarke v. Clarke, 11 Abb. Pr., 230.) Moreover, the complaint is defective in not averring, that since the plaintiff acquired knowledge of what he denominates a “ fraud,” there has been no voluntary cohabitation between the parties. (2 Rev. Stat., 143, § 31.) And it does not appear where the second marriage was contracted, nor that at the place of contract it was void. This comt has no power to annul a marriage contracted out of this State except in case of Laud. A contract of marriage out of this State being assumed, its legality is presumed, and if legal at the place of contract, it is legal every where. (1 Bish. Marr. & Div., § 355.) No fraud at the place of contract being averred, this court has no jurisdiction to annul the marriage.
    II. The second alleged ground of jurisdiction also fails: 1. This court has no jurisdiction to set aside a judgment rendered by a court of record in a sister State. This suit concedes that the judgment is yet valid in Illinois. It is therefore within the constitutional protection as to its force and validity here. (Const. U. S., Art. 4, § 1; Bicknell v. Field, 8 Paige, 445; Westervelt v. Lewis, 2 McLean, 511; Bissell v. Briggs, 9 Mass., 440; Rogers v. Rogers, 15 B. Mon., 364.) 2. The validity of the judgment can be tested only by appeal in the suit in which it was rendered. (Bicknell v. Field, supra; Burlen v. Shannon, 3 Gray, 388.) 3. A judgment can only be declared void for the reason that the court by which it was rendered had no jurisdiction of • the subject matter or of the parties. No such reason in this case has been assigned or exists. (Lane v. Bommelmann, 17 Ill., 95.) 4. If the judgment was fraudulenly procured it cannot be impeached for that reason in this collateral action. (Tilford v. Barney, 1 Iowa, 575; The People v. Downing, 4 Sandf. R., 193 ; Lamprey v. Nudd, 9 Fost. [N. H], 229; Wesson v. Chamberlain, 3 Const., 332). 5. The action of the court in this case may have been irregular in disregarding the answer, but it cannot for that reason be impeached by a stranger collaterally. (Maxwell v. Pittinger, 2 Green., 156; Anderson v. Fry, 6 Ind., 76; State v. Conolly, 6 Ired., 243; Miller v. Barkeloo, 3 Eng., 318; Brown v. Byrd, Id., 384; Cropsey v. McKinney, 30 Barb., 48; Bumsteed v. Reed, 31 Barb., 669, and cases there cited; Barron v. Tait, 18 Ala., 668; .Mobley v. Mobley, 9 Ga., 247; Wright v. Marsh, 2 Greene, 94; Ranoul v. Griffie, 3 Md., 54; Mills v. Dickson, 6 Rich., 487; Vanderpoel v. Van Valkenburgh, 2 Seld., 190 ; Cyphert v. McClure, 22 Penn.,. 195.) 6. But there was no irregularity in the rendition of the judgment. The question was one of rule and practice, and the judgment' of 'the court is not weakened or vitiated- by the error in practice.
    
      IV. The complaint proceeds upon a mistaken view of the law. No court except the one rendering the judgment is com_ petent to vacate it.
    V. The cause of action as set forth in the complaint does not fall within any one of the four subdivisions contained in the statute. It is not for alleged minority. Nor on the ground that there is a former husband of the defendant now living, her marriage with whom is now in force. Nor that the plaintiff was an idiot or a lunatic. Nor that the consent of the plaintiff was procured by force or fraud.
    The cause of action as it is disclosed by the relief now sought, is to declare that the Illinois divorce was illegal; that as a consequence the former ‘ marriage of defendant is in full force; that it was so in force when defendant was married to plaintiff although the divorce was then unreversed; that the former marriage being in force defendant has been guilty of bigamy; and thus by the decision in this suit a marriage which may have been lawfully contracted out of this State is inade illegal. Morality and decency alike require that the court should refuse to exercise any jurisdiction or grant such relief in this case. (Pugnet v. Phelps, 48 Barb. 566; Singer v Singer, 41 Id., 140.)
    
      G. W. Parsons, opposed.
   Cardozo, J.

The allegation in the complaint that the parties resorted to Illinois to obtain a decree of divorce in fraud or violation of the laws of the place of their domicile, Ij think unimportant here. I can very well see how the State of! Massachusetts might complain that its citizens had violated! their allegiance to it, and how the courts of that State might disregard the judgment of another jurisdiction which granted1 a divorce to persons domiciled in the former State, who could not have obtained such a decree in the tribunals of that State. But I do not know of any principle, and have not been referred to any decision which sustains the doctrine that the courts of; lids State should thus protect the sovereign rights of Massa-, elm setts. The complaint does not question the jurisdiction of .the Illinois court over the subject matter, and it shows that. that tribunal acquired jurisdiction of the persons of the parties —of the plaintiff by his bringing the action, and of the defendant by her appearing and answering the bill. Whether the rest of complaint be deemed to charge in effect only that certain irregularities were had in the progress of the suit, or whether it sufficiently alleges that the parties practiced a fraud on the court and thus procured the decree, will not be material to determine. If the former be the true construction, then it is enough to say that mere irregularity could not affect the decree, and that the plaintiff here, a stranger to that litigation, cannot be heard to question the regularity of the proceedings of that suit. He may raise jurisdictional questions, but not mere points of regularity in practice.

If, however, the right view of the pleading be the latter one, above mentioned, and if the courts of this State can entertain a suit to annul the decree of a court of another State on the ground of fraud, yet this plaintiff is not in a position to ask any such relief. No one can claim to have a judgment or a deed avoided for fraud, unless it injuriously affects him, and such is not the case with this plaintiff. Giving the complaint the most liberal construction for the plaintiff, it charges that the representation upon the faith of which the plaintiff married the defendant was that she “ had procured a valid divorce ” from her former husband. In other words, that this plaintiff and she might lawfully be married. Now if this be true, the plaintiff has not been harmed by this deception, and even if the representation were inaccurate he will not be entitled to annul the marriage. The complaint does not dispute, but that if the decree of divorce stands, the defendant would be at liberty to marry, and that, therefore, must be assumed; but it avers that the parties to the divorce suit colluded together, and by such collusion fraudulently obtained the judgment. If that be so, neither of those parties could possibly avoid that decree. (Bish. Marr. & Div., 706.) It is binding upon both of them, and the marriage between this plaintiff and the defendant was valid. Where both parties unite to practice a fraud; neither can be heard to seek relief against it; and as the plaintiff cannot be prejudiced if his marriage were lawful, he, a stranger, has no interest in the matter which would authorize him to impeach the judgment for that fraud. That his feelings or prejudices might have revolted at marrying a woman under such circumstances, gives him no standing in court. (Clarke v. Clarke, 11 Abb. Pr., 230.)

Without adverting to other views which lead me to think that this complaint cannot be sustained, enough has been said to show that, in my opinion, the demurrer is well taken, and that there must be judgment thereon for the defendant, with costs.  