
    OGDEN v. OGDEN.
    Divorce ; Collateral Attack ; Res Judicata ; Cruelty.
    1. Queere, Whether, in a suit here for divorce upon the ground that the defendant has a husband living, a decree of divorce granted the defendant in Missouri after summons by publication only, can be collaterally attacked by showing that the defendant had not been a resident of that State for one year prior to the filing of her petition there as required by the law of that State and as alleged in her petition there filed.
    2. Conduct by a wife toward her husband, actually causing mental suffering on his part of severity sufficient to seriously affect his health and endanger his life, is such cruelty as will constitute ground of divorce ; but to justify a decree upon that ground, the proof of the existence and the cause of such suffering must be plain and the serious effects upon his present health, as well as its menace of real danger to his life, must be shown with an unusual degree o certainty.
    No. 992.
    Submitted June 7, 1900.
    Decided October 19, 1900.
    
      Hearing on an appeal by the defendant from the decree of the Supreme Court of the District of Columbia in a suit for divorce.
    
      Affirmed.
    
    The facts are sufficiently stated in the opinion.
    
      Mr. J. M. Wilson, Mr. Henry E. Davis and Mr. Chas. Cowles Tucker for the appellant:
    1. The court will be very reluctant to vacate the decree of divorce obtained about twenty years before the institution of the present suit, as by so doing the interests of many innocent persons may, and in all probability will be seriously affected. Even upon the hypothesis of the appellee that the appellant had not in fact been a resident of the State of Missouri for one year prior to the filing of her petition there, the Missouri court having found her averment of more than one year’s residence.to be true, the Missouri decree, in the language of the Supreme Court of Minnesota in Thurston v. Thurston, 58 Minn. 279, “stands on the same footing as any other judgment procured by false testimony,” and can not be reopened, especially by the courts of another jurisdiction. See, also, Kern v. Field, 71 N. W. 393. In construing Sec. 2185-k, Rev. Stats. Mo. (1879), the courts of Missouri have held that it precludes a successful attack upon any decree of divorce rendered in that State, upon the ground of fraud or upon any ground whatever. Salisbury v. Salisbury, 92 Mo. 683. So that we have a decree of divorce rendered in the State of Missouri, which is valid there as between the parties to the proceedings in which it was rendered, which has been declared void by a court of this jurisdiction in an indirect attack upon it, upon grounds which could not be urged in the State in which the decree was rendered. The decree of the court below is a plain violation of Article IV, Sec. 1, of the Constitution of the United States, which provides that “ full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every State,” and of the express terms of the act of Congress of May 26, 1790 (It. S. U. S., Sec. 905), passed in pursuance of the authority granted Congress by that article and section of the Constitution. See Cheever v. Wilson, 9 Wall. 123; Ditson v. Ditson, 4 R. I. 107.
    2. Where, in a proceeding in rem or quasi in rem, the domicile of a person is determined, such finding can not be collaterally attacked in another jurisdiction. Railroad Co. v. Gorman, 7 App. D. C. 91; Holmes v. Railroad Co., 1 Sawyer; C. C. 384: S. C., 6 Sawyer, C. C. 262, distinguishing Thompson v. Whitman, 18 Wall. 457; Grignon’s Lessees v. Astor, 2 How. 319; Simmons v. Saul, 138 U. S. 439; Gunn v. Howell, 35 Ala. 144; Lehman v. Glenn (Ala.), 6 So. Rep. 44; Cheever v. Wilson, 9 Wall. 108; Kinnier v. Kinnier, 45 N. Y. 535; Waldo v. Waldo, 52 Mich. 94. A divorce suit is a suit in rem or quasi in rem, the status of the parties being the res, and jurisdiction may be obtained by publication. Ellison v. Martin, 53 Mo. 575; Cooley’s Const. Lim. (6th Ed.), p. 499; Freeman on Judgments (4th Ed.), Sec. 584.
    3. So far as the charges contained in the bill alleging cruelty of conduct on the part of the appellant towards the appellee are concerned, Mr. Justice Cole considered carefully the testimony in support of such charges and was of opinion that they were unfounded; and at the hearing before Mr. Justice Barnard such charges were abandoned by the appellee, or, at least, the testimony in their support was not read to or considered by the court.
    
      Mr. J. H. Ralston and Mr. F. L. Siddons for the appellee:
    1. Under the circumstances of this case, a divorce should be granted for “ cruelty of treatment endangering the life or health of the party complaining.” With the exception of two assaults testified to by various witnesses, the acts complained of consist of the use of opprobrious words used to and about the complainant, and spoken in the presence o relatives and servants. It is shown that the effect of these words was to materially injure the health of the complainant, driving him to the verge of insanity, injuring his physical condition, endangering his life and health in the fullest meaning of such expressions. Carpenter v. Carpenter, 30 Kansas, 712; Marks v. Marks, 56 Minn. 264; Kelly v. Kelly, 2 L. R. (Pro. and Div.), 31. Any conduct sufficiently aggravated to produce ill health or bodily pain, though operating primarily on the mind only, should be regarded as cruelty. Powelson v. Powelson, 22 Cal. 358; Latham v. Latham, 30 Grat. 307 ; Pinkard v. Pinkard, 14 Tex. 356; Wright v. Wright, 6 Tex. 3; McClung v. McClung, 40 Mich. 493. See, also, Glass v. Wynn, 76 Ga. 319; Myers v. Myers, 83 Va. 806; Sylvis v. Sylvis, 11 Col. 319.
    2. The decree of divorce granted to appellant in Missouri should be considered as void, and therefore a divorce granted to the plaintiff in the pending action, for the reasons that the Missouri court did not have jurisdiction of the case, and that a fraud was committed upon the Missouri court. Thompson v. Whitman, 18 Wall. 457. This decision emphatically settles that a judgment may be attacked collaterally because of the want of a jurisdictional fact, notwithstanding even the decree itself declared that such jurisdictional fact was determined by the court granting the decree. See, also, Rose v. Himely, 4 Cranch, 268 ; Strait v. Strait, 3 MacArthur, 415; Barney v. De Kraft, 6 D. C. 363 ; People v. Dawell, 25 Mich. ,247 ; Gettys v. Gettys, 3 Lea, 260 ; People v. Baker, 76 N. Y. 78; Chaney v. Bryan, 15 Lea, 591; Kerr v. Kerr, 41 N. Y. 275; Cross v. Cross, 108 N. Y. 628; Noyes v. Butler, 6 Barb. 613; Reed v. Reed, 52 Mich. 121; Litowitch v. Litowitcht 19 Kansas, 455 ; Van Fosen v. State, 37 Ohio St. 320 ; Gregory v. Gregory, 78 Me. 187; Hanover v. Turner, 14 Mass. 227; Prosser v. Warner, 47 Vt. 667 ; 2 Bishop on Marriage and Divorce, Ch. 10 ; State v. Armington, 25 Minn. 37 ; 15 Johns. 121; Watkins v. Watkins, 125 Ind. 163 ; Lyon v. Lyon, 2 Gray, 367; Adams v. Adams, 13 L. R. A. 275: 154 Mass. 290; 
      Mellin v. Mellin, 10 Abbott, (N. C. )329 ; Sewall v. Sewall, 122 Mass. 156.
   Mr. Justice Shepard

delivered the opinion of the Court:

This is an appeal from a decree of divorce rendered on a bill filed by David M. Ogden against Sarah Jane Ogden. The bill alleges that the parties were married on June 17, 1896, in the District of Columbia, where they then resided and continued to reside until the commencement of the suit.

Two distinct grounds for the divorce prayed were alleged in the bill and testimony was taken upon each.

The first of these is, that the defendant, at the time of her marriage to complainant, had a husband living from whom she had not been legally divorced. The second is cruelty on the part of the defendant endangering the health and life of the complainant.

In support of the first ground the following facts appear substantially in the record. Defendant’s maiden name was Gibson, and she was born in Ireland. She married Henry J. Hanna and came with him to the United States in 1868. After several years’ residence in New York, Hanna joined the United States Army and served at different posts as a hospital steward. He was ordered to Fort Ellis, Montana, in 1877, and lived there with his wife and their three children. She was for a few months mátron of the hospital.

On January 1, 1878, she was retired from that position and shortly afterwards went to a place called Bozeman, leaving her husband- and children, from whom she remained separated. Hanna remained in the military service until discharged at Chattanooga, Tennessee, in 1879; he then went to Helena, Montana,-and lived until 1884, after which he moved to Indiana.

On March 2, 1878, defendant filed a suit for divorce against Henry J. Hanna in the district court for Gallatin County, in the then Territory of Montana, alleging cruelty and abuse as grounds therefor. It was also alleged that she had been a resident of Montana since June 15, 1877. The bill was sworn to by complainant and seems to have been dismissed during the same year without service upon the defendant Hanna.

On December 19, 1878, she filed another suit for divorce against said Hanna, in the circuit court for the city of St. Louis, State of Missouri. The petition therein was sworn to by her and alleges that “she has resided more than one whole year next within this State before the filing of this her petition.” The charges against the defendant are continuous cruelty and ill-treatment during four years at Bozeman in Montana; and adultery during the same period with a party named in the petition.

In the petition for divorce filed in Montana she alleged that there were three children of the marriage, aged respectively nine, six and two years, and asked for a decree giving her the immediate care and custody of the eldest, with that of the second, twelve months thereafter. These were not mentioned in the petition filed in the Missouri court.

The statute of Missouri in force at the time of that suit declared that the plaintiff in an action for divorce shall have resided in the State for a period of one year next before the commencement of the suit. Upon this proof showing that appellant had not resided in the State of Missouri for the required time, the appellee contended, and the court below so held, that the circuit court of the city of St. Louis had no jurisdiction in the premises and its decree was null and void.

Whether it is permissible to inquire into the truth of the allegation in the petition to the Missouri court, to the effect that the plaintiff, at the time of commencing her suit, had been a resident of that State for one year, and, upon the ascertainment of its falsity which is apparent, to declare the decree of that court void for the want of jurisdiction, presents a very important and delicate question. Henry J. Hanna, the defendant in that suit, and against whom the decree ran upon the summons by publication, has since, it would seem from suggestion made on the argument, assumed the validity of that decree, and contracted another marriage. At the same time, there is nothing to show, nor is there ground to suspect, that he had any knowledge of the pendency of the suit, or acquiesced in the perpetration of the fraud upon the Missouri court. It is true that he can not be bound, nor can his status be actually determined, by any decree made in this proceeding, yet, an adjudication that the bonds of marriage between him and the appellant here have not in fact been dissolved might seriously, though indirectly, embarrass him in his new relations, and also injuriously affect the innocent wife and issue of his second marriage. Moreover, the statutes of the State of Missouri necessary to the determination of the question have not been set out in the proof. All that appears is their substance and effect as alleged in the bill and claimed in the briefs of counsel, any inaccuracy in which might lead to a wrong conclusion.

For these reasons, though leaning to the view that the Missouri court was without jurisdiction to render the decree, we have concluded to pretermit the expression of a decided opinion on the question and to rest our conclusion on the second ground of the bill, as that will be sufficient for the final disposition of the case.

The appellee, Dr. Ogden, was a widower and maintained a home for his two unmarried children and his mother. He married appellant shortly after the death of her second husband, John Shea, and brought her to live in the same house. He was not aware of the fact, and it was concealed from him, that appellant’s first husband was alive, and that she had living children by that marriage. He denied in his bill, and it is nowhere made to appear, that he knew she had been married to any one prior to Shea. A marriage begun with this want of confidence, if not to say deception, soon developed discord and unhappiness. It would serve no useful purpose to review the evidence introduced upon this issue of cruelty. Passing by some points about which there is conflict of evidence, we find proof to show that the appellant began soon to show ill temper to her husband, without apparent provocation on his part.

She soon began to charge him with having improper relations with his colored female patients and servants, and went so far as to inquire of one of the servants if he had not made indecent solicitations to her.

He was also made the butt of certain sneers and coarse insinuations of a particularly irritating character, although they involved no suggestion of immorality. Shortly before the institution of the suit she struck him a blow in the face in the course of an altercation.

There is no question of the serious effect of appellant’s conduct upon the health of the appellee. Before marriage he had been in good health and capable of carrying on his practice as a physician. The evidence of competent and reputable physicians shows that during his domestic troubles he suffered loss of appetite and flesh, became extremely nervous, and was afflicted with insomnia. Before separation from the appellant and the institution of his suit he was on the verge of complete nervous exhaustion; and his “run down condition,” so called by the medical witnesses, threatened serious results unless there should be a complete cessation of its cause. His sexual relations with the appellant appear to have ceased upon, if not before, his discovery of the history of her first marriage and divorce, and cohabitation in the formal relations of husband and wife became intolerable. Passing by the single act of personal violence before mentioned, the mental suffering which the appellee endured and which seriously affected his health and threatened his life, is, in our opinion, sufficient foundation for the decree divorcing the parties.

By the great weight of authority, which we deem it unnecessary here to review, cruelty, as a ground of divorce, is not limited to physical violence. Conduct actually causing mental suffering of severity sufficient to seriously affect health and endanger life is such cruelty also. Carpenter v. Carpenter, 30 Kan. 712, 743; Sylvis v. Sylvis, 11 Col. 319, 328; 9 Am. & Eng. Encyc. L. (2d Ed.) 794, et seq.

It is perhaps hardly necessary to say that, to justify a decree upon this ground, the proof of the existence and the cause of such suffering must be plain, and its serious effect upon present health as well as its menace of real danger to life must be shown with an unusual degree of certainty.

For the reasons given the decree will be affirmed; but the costs in this, court will be taxed against the appellee. It is so ordered. Affirmed.  