
    Ann C. Kamp, Respondent, v. Heinrich Kamp, Appellant.
    (Argued November 24, 1874;
    decided December 8, 1874.)
    In an action for divorce, a vineulo, the jurisdiction of the court over the subject-matter of the action and over the parties, in respect to all matters involved in it, terminates with the entry of final judgment therein, save for the enforcement or correction of the judgment.
    Where the action is by the wife, her claim for alimony is to he determined by the situation of herself and husband at the time of making the decree. If no provision for her is made therein, it is to he presumed that the court decided adversely to her claim,and the decree is equally final as if such provision had been made. The court has no power, on subsequent application showing circumstances thereafter arising, to award alimony. Where, upon such an application, an order is made granting an allowance for alimony, the defendant, although he appeared and opposed, is not limited to an appeal from the order; but may, when proceedings are being taken to collect the allowance, move at Special Term to have the order set aside on the ground of want of jurisdiction. (Grover and Folger, JJ., dissenting.)
    The rule that a party cannot appeal from one judge to another of co-ordinate jurisdiction by motion for relief from an order or judgment against him, does not-apply where the court was without jurisdiction and the order or judgment void. He is not bound to appeal from a void order or judgment, but may resist it and assert its invalidity at all times. (Grover and Folger, JJ., dissenting.)
    Appeal from judgment of the General Term of the Superior Court of the city of New York, affirming an order of Special ■ Term denying a motion, on behalf of defendant, to set asido certain orders theretofore made herein.
    This was an action for divorce, a vinculo.
    
    In August, 1852, a final judgment was perfected in favor of plaintiff granting the divorce, hut making no provision for alimony. On the 11th of November, 1871, plaintiff made a motion for alimony upon an affidavit showing, in substance, that since the decree she had become unable to support herself and that defendant had become wealthy. Defendant appeared by counsel and opposed. An order was granted appointing a referee to take proofs, ascertain and report what would be a suitable allowance, and directing that defendant pay costs of reference and plaintiff’s expenses, and defendant appeared before the referee and produced witnesses. The referee reported that defendant was not entitled to alimony. On the 30th March, 1872, on the coming in of said report, an order was granted, in effect, determining that plaintiff was entitled to alimony, and referring it to another referee to determine amount, etc. Defendant did not appear before the second referee. On the 23d May, 1872, on the coming in of the report, it was ordered that defendant pay to plaintiff during her life, or until further order, $1,000 per annum and the costs and expenses of the proceedings. On the 25th October, 1872, a motion was made, on the part of defendant, to set aside the report of the last referee and that he be allowed to come in and defend, which motion was denied. Whereupon, on the 18th December, 1873, defendant moved that the orders of November 11th, 1871, and of March, 30th and May 23d, 1872, be set aside as void, on the ground that the court had no jurisdiction to grant them. The motion was denied, and the order denying the same is the one appealed from as above stated.
    Further facts appear in the opinion.
    
      H. C. Snebly for the appellant.
    The court had no jurisdiction of the action, except to enforce payment or to carry out the judgment. (2 Robt., 660; 3 id., 693; 8 N. Y., 254; 1 Pet., 328; 12 N. Y., 156; 1 Abb. Pr., 97; 17 id., 322; 48 Barb., 371; 2 Lans., 90.) Alimony must be awarded by the same decree that granted the divorce and in the same action, and be included in the judgment. (9 Watts [Penn.], 90; 27 Miss., 630-692; 21 Conn., 185; 1 Bandf., 360; 8 Geo. T. R., 67 ; 2 Bish. on M. and D., 492; 25 N. Y., 501; 1 Barb. Ch., 646; 3 Bosw., 661, 696, 697.) A decree cannot,_ on motion or petition, be varied or modified in substance. (Leitch v. Cumpston, 4 Paige, 476; Clark v. Hall, 7 id., 382; Sprague v. Jones, 9 id., 395 ; Ray v. Conner, 3 Edw. Ch., 478; Gardner v. Dering, 2 id., 131; King v. Savery, 8 De G., M. & G., 311, 317; Willis v. Parkisson, 
      3 Swans., 233; Brackenberry v. Brackenberry, 2 J. & W., 391-396; Colman v. Sarell, 2 Cox, 206 ; Brockfield v. Brady, 2 S. & S., 64; Burch v. Scott, 1 Bland, 120; Brambbett v. Pickett, 2 A. K. Marsh., 11; Elliot v. Pell, 1 Paige, 263 ; Danl. Ch. Pr. [4th ed.], 1028; 2 J. R., 205; Prentis v. Machado, 2 Robt., 661; Belmont v. Ponvert, 3 id., 693.) The effect of a judgment is the same in divorce suits as in other cases. (Bish. on M. and D., § 667; 2 Smith’s L. Cas. [7th Am. ed.], W. & H. Notes, 633; Freeman on Judgt., § 314; 2 Danl. Ch. Pr. [4th ed.], 996; Harlan v. Barnes, 5 Dana, 223; Lee v. Braxton, 5 Call., 459; Kendall v. Marsters, 2 De G., F. & S., 200.) The burden is upon the plaintiff to-show the right to modify a final judgment. (Ram on Leg. Judgt., chap. 7; Whincup v. Hughes, L. R. [6 C. P.], 86 ; Cook v. Cook, 1 Barb. Ch., 644; 2 Bish. M. and D., § 492.) After decree of divorce, a vinculo, no action can be maintained for alimony. (Lawson v. Shotwell, 27 Miss., 630; Fonblanque’s Eq., by Laussat [Am. ed.], note 99; Fischli v. Fischli, 1 Blackf., 360, 361; Le Guen v. Governor, 1 J. Cas., 492; 2 Danl. Ch. Pr., 1459.)
    
      H. F. Hatch for the respondent.
    The granting of alimony,, after the judgment roll was filed is only an irregularity, and is not void for want of jurisdiction, the court having had jurisdiction when the decree was granted. (Kamp v. Kamp, 46 How., 143 ; Bangs v. Duckenfield, 18 N. Y„ 592.) Defendant has waived the irregularity, if any existed, by not moving in time to vacate the proceedings. (Bowman v. Tallman, 28 How., 482; S. C., 19 Abb., 84; 2 Robt., 632; 3 id., 633; McEvers v. Markler, 1 J. Cas., 248; Cowman v. Lovett, 10 Paige, 559; Watts v. Crawford, 11 id., 470 ; Titus v. Relyea, 16 How., 371; Jones v. U. S. Slate Co., id., 129; Gra. Pr. [2d ed.], 702.) The question of jurisdiction is res adjudicada. (Kamp v. Kamp, 5 J. & S., 24; 46 How. Pr., 143; 44 id., 505.) The court had power to make an order granting alimony at a period subsequent to the granting .of the decree. (3 R. S. [5th ed.], 236, § 58; McKarraher v. 
      McKarraher, 8 Yates [Penn.]; 56; Stotwell v. Stotwell, 1 S. &. M. [Miss.], 51; Winston v. Winston, 3 S. & T., 245 ; Richardson v. Wilson, 8 Yerg., 67; Bowman v. Worthington, 6 Am. L. Reg. [N. S.], 621; Miller v. Miller, 6 J. Ch., 91; Forrest v. Forrest, 25 N. Y., 501, 505.)
   Allen, J.

The general rule is that a party cannot appeal from one judge to another of co-ordinate jurisdiction, by motion for relief, from an order or judgment against him, but must seek his remedy by appeal to a tribunal having appellate jurisdiction in the premises. But the question has usually arisen in cases where the court making the order has had jurisdiction of the subject-matter and of the person of the party against whom the order or judgment has passed. The reason of the rule, which is simply one of convenience, does not apply when the court is entirely without jurisdiction, and the whole proceeding, including the order or judgment, is eoram non judiee and void. One is not bound to appeal from a void order or judgment, but may resist it and assert its invalidity at all times.

Judge Grover has clearly demonstrated that the entire procedure to compel the defendant to pay a heavy tribute annually to the plaintiff, under the name of alimony, in a suit terminated by final judgment, divorcing the parties a vinculo, and declaring their rights, more than eighteen-years before these proceedings were instituted, is not only without precedent but without jurisdiction. As said in substance by Judge Grover, the jurisdiction of the court over the subject-matter of the action and over the parties, in respect to all matters involved in it, terminated with the entry of final judgment therein, except to enforce the judgment and carry out its provisions, or to correct any mistakes in the record, upon proper application, made within a reasonable time. The parties, from that time, were no longer husband and wife, and had no claims upon each other growing out of the relations before then existing between them, except such as were given by the judgment. The court had adjudged that the plaintiff was not entitled to alimony. The law presumes that every question involved in the action — and the right of the plaintiff to alimony was one of those questions—■ was passed upon by the court, and the claim to alimony, if made, was decided adversely to the plaintiff, and the adjudication was final. The judgment was final not only as to the matter actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have had decided. (LeGuen v. Governeur, 1 J. Ch., 436, and cases cited at page 492, and in note [a] to 2d edition.) The plaintiff was effectually precluded from all claim to alimony by the judgment. The court then lost jurisdiction over the person of the defendant for every purpose, except so far as might be necessary to enforce the judgment actually given. Jurisdiction could only be acquired over the defendant in any new procedure by the service of a summons, and the commencement of an action in the usual form. There was no action pending. The appearance or non-appearance of the defendant in pursuance of a notice of motion for some order against him, could not and did not give the court jurisdiction, and certainly an. appearance and contesting the right of the plaintiff to any relief in the proceedings, as was done here, did not give jurisdiction. If consent could give jurisdiction and authorize the court to proceed summarily to confiscate his property, an appearance by the party and a protest against the proceeding could not operate as such consent and confer jurisdiction. All the orders in the proceeding are unusual in form. It is probable they did not receive the sanction'of the learned judges, but were' entered without a deliberate settlement by the court.

The want of jurisdiction makes the order and judgment of the court, and the record of its action utterly void and unavailable for any purpose, and the want of jurisdiction may always be set up collaterally or otherwise. (Latham v. Edgerton, 9 Cow., 227; Borden v. Fitch, 15 J. R., 121, per Thompson, Ch. J.; Mills v. Martin, 19 id., 7.) The want of jurisdiction to make the orders and give the judgment complained of, is undoubtedly available to the defendant as a defence to the action referred to in the papers before us, and now pending against him to enforce them, but he is at liberty by a more direct and summary proceeding to have them set aside and vacated, and the fact that proceedings are in progress to enforce them is a reason why the court should listen to his application. Mr. Commissioner Earl, in Fisher v. Hepburn (48 N. Y., 41), gives the true reason why it is not fit that one judge should sit in review of the decisions and judgments of another judge of the same court, and that reason rests not so much on a want of power to correct what has been mistakenly done as the confusion and vexatious litigation that would be likely to arise from so unwise a course in the administration of justice. But the learned judge clearly recognizes the distinction between cases in which the court has jurisdiction and where it has not, reaffirming the rule that when jurisdiction exists, the decision of the court is conclusive, although erroneous, until reversed, while in the absence of jurisdiction it is a nullity; and he examines the question of jurisdiction in the matter then under consideration and coming to the conclusion that there was jurisdiction, applies the rule that one judge shall not sit in review of the actions of another judge of co-ordinate jurisdiction, clearly implying that the question of jurisdiction could be raised in a collateral proceeding to vacate the action of another judge. The syllabus of the case as reported limits the rule under consideration to those cases where the court making the decision, or rendering the judgment, sought to be set aside on motion, has jurisdic-tion. Judge Davies, counsel for the appellant, invoking the benefit of the rule, arguendo, limits it to cases where the court has jurisdiction, and does not claim for it a more comprehensive reach, and insists upon the application of it because the court had jurisdiction in the proceedings attacked, and in this he was sustained by the court. Courts of equity entertain jurisdiction to set aside judgments at law, recovered by fraud, or to restrain their execution, and by parity of reasoning a court having jurisdiction over its own records and judgments may prohibit the enforcement of judgments and orders, which are nullities for want of jurisdiction. An order irregularly granted may be set aside on motion to any judge having power to act, as well as by the judge who granted it. The jurisdiction of courts of criminal jurisdiction may be inquired into upon a writ of habeas corpus, for the discharge of one imprisoned in execution of a sentence. (Ex parte Lange, 18 Wallace, 163; Haggerty v. People, 53 N. Y., 476.)

Judgments of courts proceeding within their jurisdiction cannot be questioned collaterally or by other tribunals except upon appeal upon the ground of mistake or error, but judgments by courts having no jurisdiction are as no judgments, and bind no one. A foreign judgment may be attacked for want of jurisdiction in the court in which it was rendered. (Bank of Australia v. Neas, 16 Q. B., 717; Ricardo r. Garcias, 12 Cl. & Fin., 368 ; Hoffman v. Hoffman, 46 N. Y., 30.) The application in the case before us is not to reverse the judgment and decision of the court making the orders, or to reconsider the merits of the controversy, but to arrest the proceedings for enforcing a void judgment. The court had the power to inquire into the' authority by which any judgment or order appearing of record, and of which parties were claiming the benefit and seeking the execution, and this power was not confined in its exercise by any rule of practice or principle pertaining to the administration of justice to any particular branch or judge of the court. It was a jurisdiction proper to be exercised by any one of the judges, in the exercise of the power to give summary and equitable relief vested in the court.

I am for reversing the orders of the General and Special Terms of the court, and granting the motion to vacate the orders of November 11, 1871, and March 30 and May 23, 1872.

Grover, J.

(dissenting). Section 45 (2 Stat. at Large, 151), provides that, if a wife be complainant, and a decree dissolving the marriage be pronounced, the court may make a further decree or order against the defendant, compelling him to provide for the maintenance of the children of the marriage, and to provide such suitable allowance to the complainant for her support as the court shall deem just, having regard to the circumstances of the parties, respectively. Section 59 provides, that, in any suit brought by a married woman for a divorce, or for a separation, the court in which the same shall be pending may, during the pendency of the cause, or at its final hearing, or afterward, as occasion may require, make such order, as between the parties, for the custody, care and education of the children of the marriage, as may seem necessary and proper, and may, at any time thereafter, annul, vary or modify such order. It will be seen that section 45 confers power upon the court to make proper provision, in the decree dissolving the marriage, for the maintenance of the children thereof, and, also, a suitable allowance to the wife, having regard to the circumstances of the parties. This provision is to be made by, and constituted a part of, the decree, and be based upon the then circumstances of the parties. The decree, in this respect, is not to be modified by subsequent changes in such circumstances. By the dissolution of the marriage, the relation of husband and wife between the parties ceases to exist, and the subsequent relations of the parties are the same as though no marriage had ever been had. The claim of the wife for support is to be determined by her situation and probable wants, and the ability of the husband to provide therefor at the time of making the decree. If, at this time, such facts do not require the court to make such a provision, and it is not made by the decree, it is equally final in respect thereto as though such provision was made. The wife has no right, afterward, to come in and show that, although from her situation, or the circumstances of the husband at the time of rendering the decree, a provision for her support would not have been proper, yet subsequent changes require it to be made. This would entirely set aside that provision of section 45, requiring that, in making such provision, regard must be had to the circumstances of the parties at that time. If the husband, after the dissolution of the marriage, acquires property, the former wife is not entitled to any increase in her allowance on account of the property so acquired, nor can the husband claim exemption from payment of what is required by the decree, on account of subsequent losses sustained, of property which he then had, any more than exemption from the payment of any other judgment which may have been rendered against him. All this appears from section 45 of the statute. But if any possible doubt as to this remained, it would be removed by section 59, which carefully confers the power of subsequently modifying the decree in respect to the custody, care and education of the children of the marriage, while conferring no such power to modify the decree in respect to the support of the wife.

It is not intended to deny the power of the court to open a decree or judgment for the purpose of correcting a mistake made in rendering it, but this is entirely different from the power assumed in the present, of modifying the decree in consequence of facts thereafter occurring. In this case, eighteen years after the decree dissolving the marriage, upon an affidavit of the plaintiff, duly served, with notice of motion, upon the defendant, showing a then necessity of the plaintiff for an allowance for support, and of the then pecuniary means of the defendant, a motion was made for an allowance to the plaintiff for her'support. The defendant appeared and opposed the motion. An order was made appointing a referee to take proof of the facts, etc., and report to the court. The subsequent orders, resulting in an allowance of $1,000. a year, were based upon this, and the report of a second referee appointed, and show that the conclusion was arrived at by a consideration not of the circumstances of the parties at the time the decree for dissolution of the marriage was pronounced, but those of eighteen years thereafter. This was error.

Cases in which a separation, in other words, of divorce from bed and board, have been decreed, are not analogous. In the latter, the relation of husband and wife still exists between the parties, the rights and duties resulting therefrom being merely suspended by the judgment. In the former, as we have seen, that relation is terminated by the decree, and the subsequent relation of the parties the same as though no marriage between them had ever occurred.

Had the defendant duly appealed from the first order appointing a referee, and the subsequent orders, they should have been reversed. But he did not do this. He appeared and opposed the motion, and, after months’ delay, made a motion, at Special Term, to set the orders aside, on the ground that the court had no power to make them. This was appealing from one Special Term to another. The practice does not authorize this. Had the orders been made ex parte, so that the defendant had had no chance of being heard upon the original motions, the case would have been different; but he not only had the opportunity, but, in fact, was heard. Under such a state of facts the Special Term was right in holding that he could not move to set aside the order, but must have its validity determined upon appeal to the General Term therefrom.

For this reason, I have reluctantly come to the conclusion that the order appealed from must be affirmed.

Church, Cli. J., Hapallo, Andrews and Johnson, JJ., concur with Allen, J., for reversal.

Grover and Folger, JJ., dissent.

Ordered in accordance with opinion of Allen, J.

Upon motion subsequently made for reargument, the following opinion was delivered:

Per Curiam.

Were it the duty of the court to satisfy counsel in every case that the proper judgment had been given, and for the right reason, and to answer in writing every suggestion of, and' review every case cited by disappointed counsel, it would be impossible to dispose of the mass of business which impatient suitors are pressing -upon its attention. Counsel must assume that,"the court is familiar with and not inattentive to its own decisions, and have with reasonable intelligence and industry considered their arguments, oral and printed, that are presented for its consideration. This case by reason of its peculiarity, and the novel course of.procedure adopted, and the results which would be likely to follow from establishing it as a precedent, and the great changes which would follow in the practice of the courts, commanded and received a more than usual attention and examination from each member of the court. The fact that two of the judges dissented from the result, should evidence to all that the judgment did not pass sub silentio, or without serious criticism by the judges participating in it.

The majority of the court were of the opinion that the proceedings subsequent to the original decree, for the obtaining of alimony, were absolutely void, the court not having jurisdiction of the parties, if it could be said to have jurisdiction of the subject-matter of the proceeding, twenty years after a final decree and judgment divorcing the parties, without the allowance of alimony, or the reservation of the question as to alimony for future consideration, or reserving leave to the plaintiff to apply for alimony on the foot of the judgment..

The judgment of the court was that the former action, finally terminated by judgment nearly a quarter of a' century before, could not be galvanized into life so as to enable the court to resume jurisdiction of the cause, and of the parties, and give a new or additional judgment therein or entitle the plaintiff to demand alimony based upon the greatly changed condition and circumstances of the parties, from the time when they were divorced. This conclusion was arrived at for the reasons assigned as well by Judge G-roveb, as Judge Allen, and no reason is apparent for a change of opinion. Conceding that it may rest in the discretion of the court whether a void or voidable judgment, upon which no action is taken or proposed to be taken, and which is not being enforced or used agressively, shall be set aside and vacated on motion, or by some other process known to the law, the court has no discretion in the matter of enforcing a judgment, void for want of jurisdiction. It is the absolute right of the party to arrest and stay proceedings upon, and vacate a void judgment, upon which active proceedings are in progress to deprive him of his property, and compel obedience to its mandates. The process against the defendant have been quite summary, and it Avould be strange if the court might in its discretion deny him summary relief. In Foote v. Lathrop (46 N. Y., 358), a judgment had been regularly entered upon an appearance by an attorney, and it was in that case Judge G-boveb says that “ when a judgment has been once regularly entered, no party has a legal right to demand on motion to the court that it be set aside.” It was when the defendant had voluntarily-appeared and answered the complaint in an action for a divorce, and suffered judgment, that Chief Judge Chuboh, said that the court had jurisdiction, and the judgment could not he resisted collaterally. (Kinnier v. Kinnier, 45 N. Y., 535.) The decision in Schaettler v. Gardner (47 N. Y., 404), proceeded on the ground that the judgment sought to be set aside was voidable, and not void. What the decision would have been if the party had been taking active means to enforce the judgment, we do not say. It would be hard doctrine to hold that one who might not have appealed from a void judgment, or who did not choose to appeal, or was not able to do so, should be denied relief in any form against summary measures to enforce a void or voidable judgment against him and his property.

We think the case was properly disposed of, and the motion should be denied with costs.

All concur.

Motion denied.  