Argued June 8, 1891
Decided October 6, 1891
Hamilton Wallis for appellant. J.A. Shoudy for respondent.
The courts of this state are commanded by the Constitution and statutes of the United States to give such faith and credit to the judgment of the Court of Chancery of New Jersey as the judgment has, by law or usage, in the courts of that state. ( Const. U.S. art. 4, § 1; U.S.R.S. § 905.) The jurisdiction of the Court of Chancery to render the judgment against this defendant for costs and alimony may be inquired into by the courts of this state, and whether it had or not is the only question presented by the record.
A suit for a divorce, though not strictly a proceeding in rem ( Cole v. Cunningham, 133 U.S. 107, 116; Mankin v. Chandler, 2 Brock. 127; 2 Bish. Mar. Div. Sep. § 20; Drake Att. § 5), is of the nature of such a proceeding, or quasi in rem, in so far as it affects the marital status of the parties; but as to alimony and costs, it is a proceeding in personam. ( People v. Baker, 76 N.Y. 78; 2 Bish. Mar. Div. Sep. § 23; 2 Black. Judg. §§ 925, 933.) The courts of the United States and those of most of the several states, including New York and New Jersey, hold a divorce to be valid, so far as it affects the marital status of the plaintiff, which is granted by the courts of a state pursuant to its statutes, to one of its resident citizens in an action brought by such citizen against a resident citizen of another state, though the defendant neither appears in the action nor is served with process in the state wherein the divorce is granted. ( Cheever v. Wilson, 9 Wall. 108; Pennoyer v. Neff, 95 U.S. 714; People v. Baker, 76 N.Y. 78; Doughty v. Doughty, 28 N.J. Eq. 581; Cooley on Const. Lim. 400; 2 Bish. Mar. Div. Sep. § 150 et seq.) But the courts of this and some of the states hold that the marital status of such non-resident defendant is not changed by a judgment so recovered, he or she remaining a married person. ( People v. Baker, 76 N.Y. 78; O'Dea v. O'Dea, 101 id. 23; Jones v. Jones, 108 id. 415; Cross v. Cross, Id. 628; Cook v. Cook, 56 Wis. 195; Doughty v. Doughty, 28 N.J. Eq. 581; Flower v. Flower, 42 id. 152; 2 Bish. Mar. Div. Sep. § 153 et seq.; 2 Black Judg. § 926.) In case a defendant is a resident of the state in which the action is brought and amenable to its substantive laws and its laws of procedure, his marital relation may be changed by an ex parte judgment of divorce, if constructive service of the process be duly made. ( Hunt v. Hunt, 72 N.Y. 217; Hood v. Hood, 11 Allen, 196; 2 Black Judg. § 926; 2 Bish. Mar. Div. Sep. § 25.) It has been several times held, and the decisions rest upon principle that a judgment which awards (1) a divorce; (2) alimony; (3) costs, while valid as affecting the marital status of the plaintiff, does not bind the defendant as to sums allowed for alimony and costs in case the judgment be recovered in the state in which the wife is a resident citizen, against her non-resident husband, who has not appeared in the action nor has been served with process in the state in which the action was brought. ( Beard v. Beard, 21 Ind. 321; Lytle v. Lytle, 48 id. 200; Middleworth v. McDowell, 49 id. 386; Prosser v. Warner, 47 Vt. 667; Harding v. Alden, 9 Me. 140; Garner v. Garner, 56 Md. 127; Van Storch v. Griffin, 71 Penn. St. 240; People v. Baker, 76 N.Y. 78, 87; Van Voorhis v. Brintnall, 86 id. 18; DeMeli v. DeMeli, 120 id. 485; 2 Bish. on Mar. Div. Sep. §§ 35, 36, 79; Cool. on Con. Lim. 406; 2 Black on Judg. § 933; Freem. on Judg. §§ 584, 586; Brown on Jurisdiction, 556, 557, 558 et. seq.)
No final process is required to enforce that part of the judgment which decrees the divorce; but the sums allowed for costs and alimony can only be collected in New Jersey, by a process against the defendant or his property; and, like other money judgments, it is not binding on a non-resident defendant, unless he is served with process in the state, or appears in the action. A judgment for a deficiency arising upon the sale of mortgaged property is not binding on a non-resident defendant who has not been served with process, nor appeared in the action ( Schwinger v. Hickok, 53 N.Y. 280), and such is the rule in respect to personal judgments rendered against non-resident defendants in actions begun by substituted service, in which property is attached. ( Oakley v. Aspinwall, 4 N.Y. 514; Durant v. Abendroth, 97 id. 132; Cooper v. Reynolds, 10 Wall. 308; Drake Att. § 5.) A judgment for alimony and costs cannot be supported on the ground that they are mere incidents of and subordinate to the right to a divorce, and the jurisdiction which is sufficient to support a decree changing the marital status of the plaintiff will not necessarily sustain a judgment for alimony and costs. This brings us to the question whether the defendant's appearance in the Court of Chancery, in obedience to the subpœna issued upon filing the original bill of complaint, gave that court jurisdiction to render a personal judgment against him on the supplemental bill which alleged the commission of a matrimonial offense subsequent to the issue joined on the original bill. This question must be determined by the law of New Jersey, for no greater effect can be given the judgment in this state than would be given to it in the state where rendered. (U.S.R.S. § 905; Board of Public Works v. Columbia College,
17 Wall. 521; Sydam v. Barber, 18 N.Y. 468.) Each state has power to regulate the procedure of its courts and prescribe the rights which plaintiffs may acquire by judgments recovered in its tribunals. The practice and procedure may be established by statute or by the rules and decisions of the courts, and the courts of a sister state cannot give greater effect to the procedure adopted than is given to it by the courts of the state in which the judgment was recovered. ( Hampton v. M'Connel, 3 Wheat. 234; Thompson v. Whitman, 18 Wall. 457; Mackay v. Gordon, 34 N.J. Law, 286.)
At the date of the filing of the supplemental bill the defendant had ceased to be a resident of the state of New Jersey, as was found by the trial court, and had become a resident of the state of New York, as was alleged in a petition filed by the plaintiff. The trial court found upon undisputed evidence that under the law of New Jersey and the practice of its Court of Chancery that jurisdiction to render a judgment for alimony and costs on the supplemental bill, enforceable in that state against the defendant, could not be acquired without service of a new subpœna in the state, or by his appearance in the action subsequent to the filing of the supplemental bill. The practice of the plaintiff's solicitor, and sanctioned by the Court of Chancery, was strictly in accordance with this finding. The defendant's solicitors resided in the state of New Jersey, but no notice was given them of the application to file the supplemental bill or any of the proceedings taken after it was filed. The plaintiff's solicitor procured a new subpœna to be issued and obtained an order for its service by publication or personally without the state. It does not appear that the solicitors for the defendant were served with the subpœna or with a copy of the supplemental bill or had notice that one had been filed. If the defendant was deemed to be in court for the purposes of the supplemental bill and the proceedings thereunder by virtue of his appearance and answering the original bill, his solicitors would have been entitled to notice of the proceedings subsequent to the filing of the supplemental bill and the entry of a pro confesso judgment would not have been authorized.
It is urged that the omission to serve the defendant with a subpœna within the state after the supplemental bill was filed, was a mere irregularity and not jurisdictional. The difficulty with this position is that it was not so found. On the contrary, service within the state was found to be, under the law and practice of the Court of Chancery of New Jersey, an indispensible prerequisite to the rendition of a personal judgment. An act or omission which would be held only an irregularity under the laws of one state may, by the laws of another, be fatal to the right of the court to proceed to judgment.
By the rules and decisions of the English Court of Chancery, which have been generally adopted and followed by the equity courts of the United States and of the several states, facts occurring after the filing of an original bill which, if proved, would entitle the complainant to the relief prayed for in the original bill cannot be introduced therein by amendment, but may be brought before the court, if at all, by a supplemental bill (Story's Eq. Pldgs. § 332), and when a supplemental bill is filed the defendant must be brought into court by the service of a new subpœna within the state unless he voluntarily appears after the supplemental bill is filed. ( Barber v. Beers, 3 Stew. N.J. Dig. 252, p. 400; Lawrence v. Bolton, 3 Paige, 294.)
It is urged that the defendant, by his subsequent marriage and motion to correct the judgment, recognized its validity in all its parts and is estopped from questioning the right of the Court of Chancery to render a judgment for alimony and costs. We fail to discover on what principle these facts can be held to create an estoppel by conduct, as the plaintiff neither did, nor omitted to do anything by reason of these acts.
This action being for the recovery of "a sum of money only," the court has no discretion as to costs. (Code C.P. § 3228.)
The order should be reversed and the judgment of Special Term affirmed, with costs.
Order reversed and judgment accordingly.