
    William Gibson Jones, App’lt, v. Lula V. Jones, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed February 28, 1888.)
    
    1. Divorce—Judgment in another state—Right to maintain action.
    The plaintiff brought this action for a divorce and the defendant, by supplemental answer, pleaded a judgment of divorce from this ¡plaintiff, obtained by her in the state of Texas. Held, that if the Texas judgment was a binding adjudication here the complaint was properly dismissed; that the right to maintain an action for divorce, presupposes the existence of the relation of husband and wife.
    2. Same—When action pending in courts having concurrent juris diction—First judgment dissolves marriage relation.
    It makes no difference that the action in this state was first commenced. If the Texas court had jurisdiction, the judgment firsti rendered dissolv ing the marriage, concludes the question in the court of the other jurisdiction.
    3. Same-t-Not an action in rem—Court must have jurisdiction of DEFENDANT.
    The married relation is not a res, within the state, of the party invoking the jurisdiction of a court to dissolve it so as to authorize the court to bind the absent party, a citizen of another jurisdiction, by substituted service or actual notice of tlie proceeding given without the jurisdiction of the court where the proceeding is pending. The marriage contract cannot be annulled by judicial sanction without jurisdiction of the person of the defendant.
    4. Same—Action in another state—Jurisdiction—When judgment BINDING IN THIS STATE.
    The defendant herein filed a petition in an action in Texas which contained the necessary allegations to entitle her to a divorce, if proved. The citation, together with a certified copy of the petition, was personally served on the husband in the city of Hew York. Afterward the husband, then being in Texas, through his attorney, filed an answer to the petition, stating that he appeared for the purpose of the motion only, and moved to quash the service of the citation and notice on the ground that the service was defective and did not give the court jurisdiction. It also contained a general denial. The defendant filed an amended petition and the husband an amended answer, protesting, as before, that the court had no jurisdiction of his person, and containing a general denial as in the first answer. The court of Texas overruled the husband's motion to quash the service of the citation. The husband then filed a second amended answer, still protesting against the jurisdiction, and, on his motion, he was given time to prepare for trial. The trial resulted in a judgment of absolute divorce for the defendant herein, which was affirmed by the supreme court of Texas. By the Texas laws the filing of an answer by a defendant is an appearance and submission to the jurisdiction. Held, that the judgment of the Texas court became a binding adjudication on the defendant therein, for the reason that the defendant, by going to Texas and filing an answer in the action, became bound by the statute law of the state prescribing the effect of that proceeding.
    5. Same—Foreign court could not obtain jurisdiction of citizen of THIS STATE IF HE STOOD ALOOF.
    
      Held, that the husband (the defendant in the Texas action) was not bound to appear, and so long as he stood aloof from that action he could not be affected by the proceeding.
    6. Judgment of another state may be impeached for want of jurisdiction—HOW FAR BINDING.
    _ The judgment of another state may be impeached for want of jurisdiction of the person or subject-matter when it comes in question in orir courts. Such a judgment is binding here only so far as the court rendering it had jurisdiction.
    7. Same—Power of state to give jurisdiction- over non-residents.
    A state cannot, by a statute, give jurisdiction to its courts over a citizen of another state not served with process within the jurisdiction, and who does not appear in the action. . A judgment rendered pursuant to such a statute upon substituted service would be void in every other jurisdiction.
    8. Same—Person bound by a temporary allegiance to state in which HE IS FOR THE TIME BEING.
    A citizen of a state going into another state, owes a temporary allegiance to that state and is bound by its laws, and is amenable to its courts. Following Bissell v. Briggs, 9 Mass., 464.
    9. Same—Jurisdiction of person may be acquired by consent.
    Jurisdiction of the person may be acquired by consent, although not of subject-matter. A general appearance of a defendant in an action is equivalent to personal service of process.
    10. Jurisdiction—Waiver of—What does not constitute.
    A party not properly served with process so as to give the court jurisdiction of his person does not waive the objection or confer jurisdiction by answering over and going to trial, on the merits, after he has ineffectually objected to the jurisdiction and his objection has been overruled.
    
      Appeal from a judgment of the supreme court general term, first department, reversing a judgment in favor of the plaintiff, recovered on a trial at special term.
    
      Edwin B. Smith, for app’lt; Wm. W. Badger, for resp’t.
    
      
       Affirming 36 Hun, 414.
    
   Andrews, J.

This action for divorce was begun against the defendant in May, 1882, by publication of the summons, but before it was tried the defendant had obtained a decree of divorce in Texas, in a suit commenced by her in that state against her husband, this plaintiff, by the filing of a petition July 28, 1882, and the service on the husband, a resident of New York, at the city of New York, of a copy of the petition and of the citation in the action, which decree was, by supplemental answer in this action, pleaded as a defense thereto, and her defense having been sustained by the court below the plaintiff has appealed to this court.

It appears from the record that the parties then being residents and citizens of this state, were married in the city of New York in 1875. They lived together until 1878, when they separated, and the wife went to the house of her parents in the city of New York, where she remained until January, 1882, when she removed with her parents to the state of Texas, where she has remained from that time.

By the laws of Texas divorces may be granted for cruel treatment and other causes than adultery, and an action may be brought by a person who has been a bona fide resident of the-state for six months prior to the commencement of the action. The petition filed by the present defendant in the state of Texas alleged' that' she was a bona fide inhabitant and citizen of Texas, and had continuously remained there for more than six months next preceding the filing of the petition; that the parties had married in 1875, and that the petitioner was compelled to leave her husband in 1878 on account'd: his-cruel treatment, and that she had since-lived separate and'apart from him.

The petition alleged in detail the circumstances of the conduct of" the husband", and prayed for a citation to the defendant, and for a decree of divorce in favor of the petitioner, and that she should be awarded the custody of the child of the marriage. The citation, together with a certified copy of the petition, was personally served on the husband in the city of New York, September 7, 1882. On the 1st of December, 1882, the husband, then being in Texas, through his attorney, filed an answer to the petition, in which, after protesting that the court had no jurisdiction of his person, and that he appeared for the purpose of the motion only, moved to quash the service of the citation and notice on the ground, among others, that the service was defective and not sufficient in law to give the court jurisdiction. This was followed by a special plea to the jurisdiction, special exceptions to the petition, and a general denial of the allegations therein.

On the 2d of December, 1882, the wife file'd an amended petition, alleging in addition to the matters stated in the original petition that the husband in April, 1882, in Texas, falsely charged her with unchastity, using indecent and opprobrious language towards her. The husband on the 6th of December, 1882, filed an amended answer, protesting as before that the court had no jurisdiction of his person, and containing special pleas and a general denial as in the first answer. On the same day the court overruled the husband’s motion to quash the service of the citation and notice, and he excepted. On May 4, 1883, the husband filed a second amended answer, still protesting, etc., against the jurisdiction, and moved for a continuance of the case until the next term, to enable him to prepare for trial. The motion was granted and the case was tried before a jury at the December term, 1883, and upon their finding, judgment of absolute divorce was rendered for the plaintiff. The husband appealed therefrom to the supreme court of Texas, where the judgment was affirmed.

The case turns upon the validity of the Texas judgment and that question depends upon the point whether the Texas court had jurisdiction to render it, so-as to entitle it under the constitution and laws of the United States, to be regarded in this state as a valid and conclusive adjudication dissolving the marriage. The right to maintain an action for divorce presupposes the existence of the relation of husband and wife. 2 Eev. Stat., 144, § 33; Code Civil Pro., § 1756. If the Texas judgment is a binding adjudication here, clearly the complaint was properly dismissed, because when the case came on for trial there was no marital bond and no relation of husband and wife existing between the parties. It makes no difference that the action in this state was first commenced. If the Texas court had jurisdiction, the case is simply one of concurrent jurisdiction in the courts of two states, and the judgment first rendered dissolving the marriage concludes the question in the court of the other jurisdiction. The validity of the Texas decision is assailed on the ground that the courts in that state never acquired jurisdiction over the person of the defendant. If this contention is well-founded it is .conclusive against giving any effect to the Texas decree. The judgment of another state may be impeached for want of jurisdiction of the person or subject-matter, when it comes in question in our courts. It is an elementary

principle that no court can lawfully adjudge rights of persons or property in the absence of jurisdiction and it is firmly settled that a judgment of the court of another state is binding here only so far as the court rendering' it had jurisdiction. It is not protected under the constitution and laws of the United States from attack ' for want of jurisdiction. If rendered without jurisdiction is not a judgment, but a mere arbitrary prescription, without force as a judicial proceeding in another form. Borden v. Fitch, 15 Johns., 121; Starbuck v. Murray, 5 Wend., 148; Kerr v. Kerr, 41 N. Y., 272; Thompson v. Whitman, 18 Wall., 461.

In the determination of the question, whether the Texas court acquired jurisdiction of the person of the defendant in the action, it must be conceded at the outset that the service of the citation upon the defendant here, who at the time was a resident and citizen of New York, owing no allegiance to the State of Texas, was utterly void and ineffectual as a means of giving the courts of Texas jurisdiction of the defendant. The process of courts run only within the jurisdiction which issues them. They cannot be served without the jurisdiction, and courts of one state cannot acquire jurisdiction over the citizens of another state under statutes which authorize a substituted service, or which provide for actual service of notice without the jurisdiction so as to authorize a judgment in person against the party proceeded against. This question has recently been considered in several cases in this state with a fullness of argument and illustration which leave nothing to be said, and it is sufficient to refer to the decisions. Kerr v. Kerr, (supra); Hoffman v. Hoffman, 46 N. Y., 30; Hunt v. Hunt‘ 72 id., 217; People v. Baker, 76 id., 78; O’Dea v. O’Dea, 101 id., 23.

It cannot be doubted, therefore, that the Texas cofirt did not acquire jurisdiction of the defendant in the action by-the service of the citation here, or that if the defendant had remained silent, taking no notice of the proceeding, no valid judgment coukl have been rendered against him. The contract of marriage cannot be annulled by judicial sanction any more than any other contract inter partes, without jurisdiction of the person of the defendant. The married relation is not a res within the state of the party invoking the jurisdiction of a court to dissolve it, so as to authorize the court to bind the absent party, a citizen of another jurisdiction by substituted service or actual notice of. the proceeding given without the jurisdiction of the court where the proceeding is pending. Folger, J., Hunt v. Hunt (supra); Cheever v. Wilson, 9 Wall., 108; O’Dea v. O’Dea (supra).

But notwithstanding the ineffectual proceeding to acquire jurisdiction of the defendant by the service of notice in this state, it was nevertheless competent for the defendant by a general appearance in the action, or other equivalent act, to submit to the jurisdiction of the Texas court and thereby bind himself by the judgment pronounced.

Jurisdiction of the person may be acquired by consent, although not of subject-matter, and it is well settled that a general appearance of a defendant in an action is equivalent to personal service of process. It is claimed that the defendant, by appearing in the Texas court, and putting in an answer, and proceeding to trial on the merits, and subsequently appealing from the judgment, waived defective service 06 process and gave jurisdiction of his person, notwithstanding his appearance in the first instance was for the special purpose of objecting to the jurisdiction, and the subsequent proceedings on his part were accompanied with a protest against the jurisdiction.

In Avery v. Slack (17 Wend., 85), it was held that a party who appeared and objected to the validity of process, did not waive the objection by answering and going to trial on the merits after his objection had been overruled. The principle has been applied in a great variety of cases and there is substantial uniformity in the decisions to the effect that a party not properly served with process, so as to give the court jurisdiction of his person, does not waive the objection or confer jurisdiction by answering over and going to trial on the merits after he has ineffectually objected to the jurisdiction, and his objection has been overruled. Harkness v. Hyde, 98 U. S., 476; Steamship Co. v. Tugman, 106 id., 118; Warren v. Crane, 50 Mich., 301; Dewey v. Greene, 4 Den., 94; Walling v. Beers, 120 Mass., 548.

It is contended, however, that the error in overruling the objection to the jurisdiction when the party subsequently answers over and proceeds to trial on the merits, can only be corrected by a direct proceeding on error or appeal, and that the judgment, when the party has appeared and gone to trial on the merits, cannot be assailed collaterally for want of jurisdiction. Most of the cases which declare the doctrine that an answer and trial on the merits does not preclude a party who has objected to the jurisdiction, from subsequently insisting that the court had no jurisdiction of the person, were cases on appeal or error. The principle upon which the doctrine proceeds is, that a party who has objected to the jurisdiction and whose objection has been overruled, is not bound, as was said by Harlan, J., in Steamship Co. v. Tugman (supra), “to desert the case and leave the opposite party to take judgment by default.” It is difficult to see why a party proceeding under such circumstances should be permitted to raise the question on. error and not be permitted to assail the judgment collaterally in another state where the judgment is set up as a bindirg adjudication. The court does not acquire jurisdiction over the person by deciding that it has jurisdiction. If the acts of the defendant do not constitute a legal waiver of the objection, or a submission to the jurisdiction so as to preclude raising the question on error in the state where the judgment is rendered, how can the same acts preclude the party from raising the question in another state in answer to the. judgment. But passing this question we think the judgment of the texas court became, and is a binding adjudication on the defendant therein, for the reason that the defendant by going to Texas and .filing an answer in the action, became bound by the statute law of the state prescribing the effect of that proceeding, and that by the Texas law the filing of an answer by a defendant is an appearance and submission to the jurisdiction.

The statutes of Texas (Ed. 1879, art. 1234) authorize a nonresident defendant to be brought in by service of notice out of the state, and when so served he is required to appear and answer in. the same manner as if. he had been personally served with a* citation, within, the. state. By article 1242 the filing of 'an answer shall constitute an appearance of the defendant so as to dispense with the answer and service of the citation upon" him.” It is clear that a state cannot, by a statute, give, jurisdiction to its courts over a citizen of another state not served with process within the jurisdiction, and" who does not appear in the action; at least a judgment rendered pursuant to such a statute, upon substituted service, would be void in every other jurisdiction. But as was said by Parker, C. J., in Bissell v. Briggs (9 Mass., 464), a citizen of a state going into another state owes a temporary allegiance to that state, and is bound by its laws and is amenable to its courts.

The defendant in the Texas action was not bound to appear. He could stand aloof, and, so long as he did so, could not be affected by the proceeding But he chose to avail himself of the right given by the laws of Texas to file an answer and contest the claim of the plaintiff. He went within the jurisdiction and was represented by attorneys there. He voluntarily filed his answer after first seeking to dismiss the case for want of jurisd ction over his person. The effect of this proceeding was declared by statute to be equivalent to an appearance in the action, and to dispense with the service of a citation. , The defendant was bound by the consequences, which the. statute-affixes to that proceeding.. He cannot invoke the general rule that an. answer on the merits does, not waive an objection to' jurisdiction because the statute in this case had intervened, and of this statute the defendant had notice.

We have reached the conclusion, for the reasons stated, that the Texas judgment is a valid and binding adjudication. There is no reason to regret this result. The present plaintiff had a full opportunity to be heard and to present his defense in that proceeding and availed himself of it. He appealed from the judgment, which was affirmed by the highest jurisdiction of the state. The litigation was, we think, conclusively ended by the final decree.

The judgment should be affirmed.

All concur.  