
    HOLMES against HOLMES.
    
      Supreme Court, Sixth District; Special Term,
    
      February, 1870
    It is not essential to the validity of a foreign divorce, as against the plaintiff who obtained it, that both parties should have resided in the State where it was granted, if process was personally served upon the defendant without the State.
    Pleading.—Foreign Divorce.—Service op Process. —Jurisdiction.
    Demurrer to answer.
    '■ This action was by Charles Holmes against Sarah A. Holmes, for a divorce a vinculo. The defendant served an answer setting up three several defenses. The second defense alleges that plaintiff, in 1865, claiming to be a resident of the State of Iowa, instituted proceedings in said State to obtain a divorce from this defendant, on account of cruel and inhuman treatment by this defendant of the said plaintiff, and that due notice of" such proceedings, in accordance with the laws of Iowa, was personally served upon the defendant, then being ' in the State of Hew York, but that said defend ant'did not appear to oppose such proceedings.^ and suffered default, and such proceedings were thereupon had in a district court of said State of Iowa, that upon the pleadings and proofs offered by the plaintiff, it was decreed “ that the bonds of matrimony between said plaintiff and said defendant be totally dissolved, and that the plaintiff be restored to the same condition as relates to the defendant as though the marriage between the plaintiff and defendant had never taken place.” And it is by said answer further averred that said decree, by the laws of Iowa, then, and at alJL timos since, was, and.is, legal, valid and effectual, and that thereby the marriage contract between the parties to this action was annulled, and the defendant was thereby restored to all the rights and privileges of an unmarried woman, including the right to marry again.
    To this second defense the plaintiff demurred, upon the ground that it did not state facts sufficient to constitute a defense.
    
      E. H. Prindle, for the plaintiff;
    Cited Borden v. Fitch, 15 Johns., 121; Vischer v. Vischer, 12 Barb., 640; McGiffert v. McGiffert, 31 Id., 69; Bradshaw v. Heath, 13 Wend., 407; Todd v. Kerr, 42 Barb., 317; Munroe v. Douglas, 4 Sandf. Ch., 126; 3 Am. Law Reg. N. S., 193 and cases cited therein; D'Arcy v. Ketchum, 11 How. U. S., 165; Webster v. Reid, 11 Id., 456; 18 Id., 404; 2 Bish. on M. & D., 4 ed., §§ 157, 160, and cases cited; Dunn v. Dunn, 4 Paige, 425; Price v. Hickok, 39 Vt.; Fentpn v. Garlick, 8 Johns., 193; Kilburn v. Woodworth, 5 Id., 37.
    
      Henry R. Mygatt, for the defendant;
    Coddington
    Cited v. Coddington, 10 Abb. Pr., 450; Kinnier v. Kinnier, 53 Barb., 454; 2 Bish. on M. & D., 4 ed., 706, § 760; Dezell v. Odell, 3 Hill, 215.
   Boardman, J.

To sustain this demurrer, it is necessary to assert as a legal principle that both parties to the action must have resided within the State of Iowa when the decree in question was granted; that service of process, summons or notice upon adefendant outside of the limit,¡3 of the State wherein the action is brought ¡.is null and void, and gives to the court no jurisdiction ' of the person of the defendant, no power to make the •' decree in question. I think such doctrines cannot be sustained. They would certainly invalidate many decrees in divorce cases granted under the laws of this State, where service is made by publication, or by personal service without the limits of the State. It would render it impossible to obtain a divorce when the defendant had left the State at the same time the act was committed giving a right of action, as in case of adultery, accompanied by elopement.

■I do not understand that any cases go so far.

Nearly all of the cases cited by the plaintiff’s counsel declare decrees void where no process was served, or notice given, to a defendant residing in another State, unless the defendant voluntarily appeared. The case of Dunn v. Dunn (4 Paige, 425) was one of irregularity, and the chancellor recognizes the statutory mode of proceeding to acquire jurisdiction. The irregularity was, however, fatal to the decree. Several of the cases related to the effect of foreign decrees upon property in this State, and were held to be invalid as against the laws of this State touching the rights to or disposition of property (5 Johns., 37; 8 Id., 194; 13 Wend., 407). Not one of these cases hold, that a decree is void when process or notice is served personally on the defendant outside of the jurisdiction of the court; but by implication nearly all the cases hold that such service is sufficient. 2 Bish. on M. & D., 4 ed., § 155, etc., lays down the rule as follows: “To entitle the court to take jurisdiction, it is sufficient for one of the parties to be domiciled in the country; both need not be, neither need the citation, when the domiciled party is plaintiff, be served personally on the defendant, if such service cannot be made.”

The author has maintained this proposition with great learning and cogency. Chancellor Kent (2 Kent Com., 11 ed., m. p. 110) expresses the same opinion “ that divorces pronounced according to the laws of one jurisdiction . . ought to be recognized, in the absence of all fraud, as operative and binding everywhere, so far as related to the dissolution of the marriage,” approving the decision in Harding v. Alden (9 Greenl., 140). It is submitted that every State has' the right to • relieve its bona fide citizens from disabilities wrongfully endured, and to redress wrongs.

Whatever may be deemed the status of the defendant in cases like this, it cannot be denied it is effectual so far as the plaintiff is concerned. It would seem preposterous that he should attempt to invalidate a decree to which he is a party, which he has procured to be made, and upon the faith of which the defendant has acted. Of course, every decree is liable to be impeached for fraud or collusion, or by showing a want of jurisdiction of the plaintiff, or of the subject matter. But these are considerations which cannot arise upon a demurrer.

Upon a careful review of, this case, it would seem that the decree pleaded by the defendant was had upon due notice to the defendant, and that the divorce thereby granted was valid and effectual under the laws of the State of Iowa, so far as appears upon such record ; that being valid and binding upon the parties thereto under the laws of the State where the same was rendered, it becomes prima facie evidence of the facts therein contained, in the courts of every other State.

The demurrer to the second defense or answer is therefore overruled with costs of demurrer, with leave to the plaintiff to reply, if he shall be so advised, within twenty days after notice of this decision, upon payment of such costs.  