
    Mary G. Bell, Respondent, v. Frederick A. Bell, Appellant.
    
      Divorce—a judgment of divorce obtained in a State of which neither party is a resident, cmd without personal service of process or cm appearance, is void— reasonable alimony.
    
    In an action brought to procure a divorce upon the ground of adultery, in which the defendant alleged as one defense that the marriage of the parties had been dissolved by a court in the State of Pennsylvania, it appeared that the parties were married in Bloomington, Illinois, the residence of the plaintiff; -that after their marriage they lived at Rochester, the home of the defendant, for about two years, at the end of which time they moved to Buffalo, where they lived until 1882, when the plaintiff left the residence of the defendant in Buffalo and returned to the home of her mother at Bloomington, where" she lived until-1894 in which year she and her mother went "to Brooklyn and remained there until March', 1895, when the plaintiff took up her residence in New York city.
    In April, 1894 the defendant began an action in a court of Pennsylvania, alleging that he was a resident of that State, and that his wife had deserted him,, but no service of process was made upon the wife other than by publication. and through the mail. The defendant was not a resident of the State of Pennsylvania, and went there merely for the purpose of prosecuting the suit. The estate of the defendant was valued at $300,000.
    
      Held, that the divorce procured in Pennsylvania by the defendant was not bind- . ing upon the plaintiff;
    That as the plaintiff was not personally served with process in the action for a divorce and never appeared in it, the Pennsylvania court acquired no jurisdiction over her, and she was entitled to attack the judgment granted in that State;
    That an allowance of alimony at the rate of $3,000 a year was not excessive.
    Appeal by the defendant, Frederick A. Bell, from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office: of the clerk of the county of Erie on the 3d day of July, 1895, upon the report of a referee.
    The action was brought to obtain a divorce on statutory grounds.
    December 22, 1894, this, action was begun by the personal service of the summons and complaint on the defendant at the city of Buffalo for the purpose of obtaining a judgment of divorce on the ground of his alleged adultery. The defendant appeared and filed an answer in which he denies the commission of the acts of adultery alleged in the complaint, and sets up two affirmative defenses: (1) That on the 8th of January, 1895, the marriage of the parties was dissolved by the Court of Common Pleas of the county of Jefferson, in the State of Pennsylvania; (2) that at a time and place mentioned the plaintiff committed adultery, which is set up as a defense and as a counterclaim. The plaintiff replied- to the answer denying the allegations of adultery therein, and alleged that neither she nor her husband was ever a resident or citizen of the State of Pennsylvania; that she was not served with process in the action.in Pennsylvania, did not appear therein ; that the court never acquired jurisdiction of the parties, and that the judgment entered was void and of no effect as between them for the want of jurisdiction.
    
      The issues were referred to a referee to hear and determine, who reported that the defendant had committed adultery as alleged in the complaint, but that the plaintiff had not, as alleged in the answer. It was also found that when this action was begun both of the parties were residents of this State, and that the defendant in this action was not a resident of the State of Pennsylvania while his action was being prosecuted in that State, but was a resident of New York, and that the defendant in that action, the plaintiff in this, was not served with the process in Pennsylvania and did not appear in the action. Upon these facts and on evidence of the value of the defendant’s estate and the amount of his annual income, a judgment of divorce was granted to the plaintiff with alimony at the rate of $3,000 per year.
    January 24, 18Y8, the litigants were married at Bloomington, 111., at which time the plaintiff resided at that place and the defendant at the city of Rochester, N. Y. For about two years after their marriage they resided at Rochester and then moved to Buffalo; where they lived as husband and wife until September, 1882, when the plaintiff left the residence of the defendant and returned to the home of her mother at Bloomington, 111. From September, 1882, until November, 1894, she lived with her mother at Bloomington, except that during that period she went on three occasions to Europe, at one time remaining thirteen months. In November, 1894, she and her mother went to Brooklyn, where they remained until March, 1895, when the plaintiff took up her residence at The Cambridge, in the city of New York, where she has since resided.
    April 9, 1894, the defendant in this action began an action in the Court of Common Pleas of Jefferson county, Pa., against the plaintiff,in this action for a divorce, alleging as a ground that he was a resident of that State, and that she had deserted him. An original subpoena was issued on the 10th of April, 1894, to the sheriff, who made return that the defendant could not be found. On the lYth of May, 1894, an alias subpoena was issued and delivered to the sheriff, who, in September, 1894, returned that the defendant could not be found. On the 14th of September, 1894, a pluries subpoena was issued, requiring the defendant to show cause on the second Monday (10th day) of December, 1894, why a divorce should not be. granted. This subpoena, pursuant to the order of- the court, was published for four successive weeks in the Brookville RepubMccm. in the issues of October 17, 189!, October 20, 189!, October 31, 189! and November 7, 1891. December 1, 189!, the pluries subpoena was inclosed in a post-paid envelope, and addressed, Mrs. Mary 0. Bell, Bloomington, Ills.,” and deposited in the post office at Keynoldsville, Pa., which was duly received at Bloomington, 111., and forwarded by the post office authorities to-the plaintiff .at Brook* lyn, N. Y., where she received it December !, 189!. The same day on which the pluries subpoena was mailed to the plaintiff, the examiner appointed to take the evidence in the-case mailed a notice to her at Bloomington, 111., that he would attend to the duties of his appointment December !, 189!, which notice she received at Brook* lyn, N. Y„ December !, 189!, the day appointed to take the evidence,
    In December, 189!, the evidence offered by the plaintiff in that action was taken before the examine!’, who reported it to. the court, .and January 8, 1895, a judgment was entered by the'Court of Conn mon Pleas of Jefferson county divorcing the litigants. . This judg:ment was entered seventeen days after the service - of' the summons :and complaint in the case at bar.
    
      Henry H. Seymour, for the appellant.
    Charles B. Wheeler, for the respondent.
   Follett, J.:

The plaintiff not having been personally served with process and never having- appeared in the action- prosecuted in the Court' of Common Pleas of the State of Pennsylvania, had the right to attack the judgment rendered by that court, on the ground that it never acquired jurisdiction -over her, and also, on the ground that the plaintiff in that action was not a citizen of Pennsylvania,. and it. was competent to support her contention by oral and documentary evi* dence. The recitals .in the Pennsylvania judgments were not con* elusive nor binding on her-. (Thompson v. Whitman, 18 Wall. 457; Kerr v. Kerr, 41 N. Y. 272; Cross v. Cross, 108 id. 628; Rigney v. Rigney, 127 id. 408; Vanfleet Col. Attack, §§ 388, 389, and cases cited.) It is not asserted that the plaintiff in this action ever resided in Pennsylvania, or that she was personally served with. process in that State, or that she appeared in that action, and the evidence is ample to sustain the finding of the referee that the defendant in this action was not a resident or citizen of Pennsylvania, but went there solely for the purpose.of instituting and prosecuting his suit for a divorce.

These facts being well found, it is settled by along line of authorities in the courts of this State that the judgment of the Court of Common Pleas of Pennsylvania is not binding on the plaintiff, and is not a bar to her action for a divorce, (Kerr v. Kerr, 41 N. Y. 272; Kinnier v. Kinnier, 45 id. 535; Hoffman v. Hoffman, 46 id. 30; People v. Baker, 76 id. 78; O’Dea v. O’Dea, 101 id. 23; Jones v. Jones, 108 id. 415; Cross v. Cross, Id. 628; Rigney v. Rigney, 127 id. 408; S. C., sub. nom. Laing v. Rigney, 160 U. S. 531; Williams v. Williams, 130 N. Y. 193; Atherton v. Atherton, 82 Hun, 179.)

It was shown that the defendant has an estate of the value of more than $300,000, and is in the receipt of a large annual income. During the married life of these parties the defendant owned and they occupied an expensive home, handsomely furnished; kept horses, carriages, a butler, a coachman and a number of servants, and the sum allowed to the plaintiff for alimony, with the income of her estate, will not enable her to live in the same style and position that she did during her married life. The defendant gave no satisfactory evidence of the amount of his estate, and we think the estimate of the referee of its value and of defendant’s income a conservative one, and that the sum allowed for alimony is not excessive.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  