The Albany Law Journal. ALBANY, MARCH 7, 1896. Current Topics. [All communications intended for the Editor should be ad building they grew envious and took counsel among themselves. Finally Mr. Pigeon Hill, a hoary-headed pauper, and a female inmate equally antique got married on their afternoon out. They returned and applied for married. quarters. The guardians refused at first, but were advised that they had no choice but to dressed simply to the Editor of THE ALBANY LAW JOURNAL. Comply. They declared that they would rather All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] break the law than be jockeyed in such a fashion, and have lodged an appeal with the local Government Board. Meantime more than a score of additional matches have been arranged pending the decision of the authorities on the fate of the first couple. We wrote some time since of the abuses which some publishers have made of the postal regulations in regard to second-class matter and called attention of the public to the fact that a bill was pending before Congress to properly restrict and limit the matter which might be sent as second-class through the mails in this country. We noticed that the THIS HIS week, in New York city, Judge Charles H. Truax was wedded to Miss Carrie Carrington. The marriage is of peculiar interest, not only on account of the prominent position of Judge Truax in the metropolis, but because his wife has been engaged for some years in the study of law and in preparation for admission to the bar. In 1895 Miss Carrington graduated from the University of New York with high honors, and read at the graduating exercises an article on Master and Servant which attracted so much attention that we requested from the author the privilege of publishing it in this JOURNAL, which we subsequently had the pleas-abuse of the postal laws would operate to ure of doing. Miss Carrington has evidenced a wonderful appreciation of the principles of the law and has attracted the attention of those who have known her because of her ability to grasp intricate principles of jurisprudence and to use them in a practical and concise manner. We published the address of a distinguished judge not long since, in which he advocated the union of the lawyer and a member of the bar of the gentler sex, and we appreciate now the wisdom of his remarks and wish Judge Truax and his bride all prosperity in the suit of their mutual profession. the final detriment of the publishers themselves, and that the advantages which the publishers had taken of the existing statutes were such as would in the end militate against their best interests. At the same time we must observe that the rulings of the post-office authorities are not always such as will bring about the best results. A recent ruling affords an example. The law allows all second-class matter to be sent by mail from the office of publication at pound pur-rates-the purpose being to encourage the dis semination of intelligence among the people by the cheap circulation of newspapers, magazines and the like. The law defines second-class matter as "all newspapers and other periodical publications which are issued at stated intervals. and as frequently as four times a year," with certain exceptions which do not concern the present case. A marriage epidemic has broken out among the ancient paupers of Hampstead, one of the parishes of London, and the guardians of the poor are at their wits' end. It seems that they unwittingly put a premium upon matrimony by erecting comfortable, cosey quarters for married couples. These are far nicer than the The meaning of this is perfectly clear. Yet general workhouse. The English law forbids an assistant postmaster-general now rules that the separation of husband and wife when past if a periodical entitled to be mailed as secondsixty. There are about 150 paupers of both class matter changes the frequency of its issuesexes who are above that age in the Hampstead for example, if a semi-weekly newspaper decides workhouse. When they saw the homelike, to publish thrice a week, or a monthly. well-furnished rooms in the married couples' magazine becomes a fortnightly it loses its VOL. 53 No. 10. status as second-class matter, and no back numbers, issued before the change or reprinted afterwards, can be mailed except at full book rates. There is absolutely no suggestion in the law of any such intent as this. It is a rule unreasonable on its face and directly subversive of the purpose aimed at in the law. Yet under the practice of the department an assistant postmaster-general can give the force and effect of law even to so absurd and arbitrary a decision as this. Postmaster-General Wilson, who has a clear brain and a reasonable disposition, will do well to edit carefully the legislative efforts of his subordinates. With the advent of women as practitioners before the bar of this State an era is begun in which the results are uncertain and obscure. Whether woman's influence will tend to elevate the tone of the courts and the jurisprudence of the State is an open question. What their influence will do in the enactment of statute law and what their power will be in needed reforms are matters of equal conjecture, though daily growing more and more important. Mrs. Clara Foltz, who was recently admitted to practice in the courts of this State, has recently been interviewed on the subject of divorce. Mrs. Foltz has had fifteen years' active practice in the courts of her native State, California, and her observations of and insight into the inharmonious side of marital life in the couples she has observed must be of practical experience, while her ideas on the subject of divorce give us a view of the situation from a woman's standpoint. On this subject she said: "The real evil is back behind the divorce, and is it cause. Brutal fists, nagging tongues, fickleness of heart and infirmness of purposein short, the vices and weaknesses of human nature are the real evils. Divorce is merely a relief from the pain and woe which these infirmities sometimes entail. There are many cases where it would be actually dangerous and even criminal for a married couple to live together. The papers this morning contain one case of wife murder, one case of a woman and her children jumping from a piazza roof to escape death by ax and pistol and one conviction of a wife-murderer, all in this city. It would have been a thousand times better if these parties had separated long before the malady had reached this acute stage. The State has no right to compel a woman to live with a man who beats her, nor to compel a man to live with a wife who seeks to poison him. It is fraught with infinite danger to both parties. Besides, it is bad policy. Children begotten of such parents, are born in bitterness, reared in a criminal atmosphere and become a menace to society and a burden to the State. "Then again, what good results from refusing a divorce to a woman whose husband is in prison for life, or to a man whose wife is an incurable raving maniac? Why make one an outcast for another's crime, and the other a celibate for another's misfortune? The prisoner and maniac are dead to society, and I see no reason why the State should not sever in law the relation that is one in name only. "The sacredness of marriage is not a sound argument against divorce. No one regards the marriage institution more highly than I, and no one gives marriage greater reverence, but I mean true marriage, which is born of love and lives in its warmth and joy, sanctioned by law. When love is slain the civil contract is but the husk and shell of marriage. Love and respect make marriage sacred. Long before a divorce. is sought love has ceased. All that is sacred is dead, and the civil court in a judgment of divorce only gives legal sanction to a decree that nature has already entered in their hearts. Separation from bed and board does not meet the difficulties of the case. It leaves the parties with none of the benefits and all of the burdens of married life. It puts them in the anomalous position of a husband without a wife and a wife without a husband, and invites a hideous system of mistresses and paramours. Besides, it assumes that both parties are guilty, while in truth only one may be to blame. Restraint from marriage is a punishment. It deprives of a common right, and it is not only illogical, but contrary to good morals and good sense to punish the innocent for the wrongdoings of others. Except for those who, by reason of religious views, regard marriage as a sacrament, I think marriage should be absolute. "Should divorcees be permitted to marry again? Yes, I think so. Since marriage is a proper relation for the race, it is for the di vorcee. The fact of divorce raises no legal or moral presumption that the divorced party is unfitted for married life. I have known many second marriages with new comrades and new environement very happy, though the first was lamentably unfortunate. I would not lightly sever the marriage bonds, nor for trivial causes. Home and family are the foundation of happiness to men and women, and strength and prosperity of the State, and are not to be broken without substantial reason. Still, I think the laws of New York are not liberal enough. I do not go as far as some in this matter, but I would legislate for society as it is, with all its weaknesses and evils, and I would recognize the existence of unpleasant facts and make laws accordingly. Three new causes for divorce should be added to the one now recognized. These are: Extreme cruelty, which endangers life or health; conviction of felony, when the punishment is imprisoment for life, and insanity, when the person has been for a long time insane and is known to be incurable. "The last clause is not, I believe, recognized as a cause of divorce in any State." A decision has recently been handed down in the United States Supreme Court which reverses the decision made by the Court of Appeals of this State in the case of Rigner v. Rigner, 127 N. Y. 408. The case also reveals the difference of opinion of the various courts on a given subject. The action was commenced at Special Term in New York, where the complaint was dismissed. In 53 Hun, 457, the General Term reverses the judgment thus rendered, while the Court of Appeals in this same case upheld the decision of the Special Term and reverses the decision of the General Term Now the United States Supreme Court has sustained the view taken by the General Term and reverses the decision of the Court of Appeals. The case has been of more than usual interest in this State and has been cited in the courts of this State in actions involving interstate matrimonial law, and particularly the enforcement of the decree of the courts of another State for the payment of alimony. The particular point decided is perhaps, narrow and special, but nevertheless partakes of unusual interest for other reasons. The decision does not interfere in any way with the general rule that jurisdiction may be obtained either by the service of process within the State or by appearence in order that extraterritorial recognition and enforcement of the judgment may be claimed under article 4 of the Federal Constitution. The decision rather holds that when general jurisdiction of the person has been once duly acquired, it will be presumed, there being nothing inconsistent on the face of the papers, that jurisdiction is obtained for the purposes of the action, especially if it be eked out by the subsequent appearance of the defendant. Mr. Justice Shiras, after stating the facts of the case, delivers the opinion of the court, which we consider of such importance that we give the main points which are material in the case and which are as follows: The federal question presented by this record is whether the judgment of the New York courts, in dismissing plaintiff's complaint, which sought to enforce a final decree of the Court of Chancery of New Jersey, gave due effect to the provisions of article 4 of the Constitution of the United States, which require that full faith and credit shall be given in each State to the judicial proceedings of every other State. The record discloses, and it is conceded, that, upon its face, the decree of the Court of Chancery of New Jersey purports to be a final decree, granting the divorce and adjudging the payment of the costs and alimony, to recover which this suit was brought. But the defendant seeks to avail himself of the well-settled doctrine that it is competent for a defendant, when sued in the court of his domicile on a judgment obtained against him in another State, to show that the court of such other State had not jurisdiction to render the judgment against him. To sustain this position in this court, the defendant relies upon the sixth finding of the trial court, which was as follows: "That the above-named defendant was never served with process in New Jersey under said supplemental bill, and never appeared therein or answered thereto, and the decree of the Court of Chancery of New Jersey, which was based entirely upon charges of adultery contained in said supplemental bill, did not, under the laws of that State, become binding upon said defendant personally." It is undoubtedly, true, as claimed by the defendant in error, that if the judgment of the Court of Chancery of New Jersey was not binding upon the defendant therein personally in that State, no such force could be given to it in the State of New York; and it is contended that as, by the sixth finding above recited, it is found that the decree was not binding personally on the, defendant, under the laws of New Jersey, the Court of Appeals of the State of New York and this court must accept and cannot review such finding. And upon that finding the Court of Appeals said: * New Jersey statute which, in his opinion, required such process to be issued on a supplemental bill in any suit in the Court of Chancery of that State, nor could he cite any judicial. decision in that State holding such process to be necessary. He also testified that "by the practice in New Jersey, if the decree contains. the fact that he was served, prima facie he was; if it does not, why, then there is no decree binding him personally. But so long as the decree stands against him in our State, why, of course, it is a good decree." He also stated that the statute conferring jurisdiction upon the Court of Chancery is in the revision of the New Jersey laws under the head of "Chancery 'The trial court found upon undisputed evidence that, under the law of New Jersey and the practice of its Court of Chancery, jurisdiction to render a judgment for alimony and The plaintiff put in evidence so much of the costs on the supplemental bill, enforceable in revision as related to the Court of Chancery, that State against the defendant, could not be and which disclosed no provision whatever reacquired without service of a new subpoena in quiring a new subpoena to be issued on any the State, or by his appearance in the action supplementary bill filed in the Court of Chansubsequent to the filing of the supplemental bill. cery, but it does contain provisions with orders Service within the State was found directing absent defendants, whether within or to be, under the law and practice of the Court without the State, to respond to the bill; and, of Chancery of New Jersey, an indispensable on proof of personal service of such order, the prerequisite to the rendition of a personal judg-chancellor may proceed to take evidence to ment." Rigney v. Rigney, 127 N. Y., 412; 28 substantiate the bill, and to render such decree N. E. 405. as the chancellor shall think equitable and just, and that any defendant upon whom such notice is served shall be bound by the decree in such cause as if he were served with process within the State. (Revision N. J. 1877, p. 104.) The plaintiff duly excepted to the findings and conclusions, and it is well settled that exceptions to alleged findings of facts, because unsupported by evidence, present questions of law reviewable in courts of error. The only evidence adduced by the defendant to sustain his side of the issue as to the law in the State of New Jersey was the testimony of Daniel M. Dickinson, an attorney and counselor at law of the Supreme Court of the State of New Jersey, and who had been employed for some years as chief clerk in the chancellor's office. This witness testified that, under the law and practice of New Jersey, a supplemental bill was, as to the matter not alleged in the original bill, an independent proceeding, and that, if there were no service of the subpoena issued under the supplementary bill and no appearance, the defendant would, as to the new matter contained in the supplemental bill, not be in court; but the same witness testified that there was no statute of New Jersey in terms requiring the issuing of a subpoena on any supplemental bill, nor was he able to specify any As the defendant's only expert witness testified that the rules and regulations of the chancery court were to be found in the statutes, it would seem at least questionable whether his opinion upon the question as to how and when that court acquires jurisdiction over a defendant in an original or supplemental bill was competent evidence in the case. At all events, we do not read his testimony as alleging that where the court has already acquired jurisdiction over a defendant by personal service within the state, and then, after appearance by counsel, the defendant absents himself from the State, and when a supplemental bill is filed in the suit, service on him of a new subpœna within the State is an indispensable perequisite to the rendition of a personal decree on such supplemental bill. And when asked directly by defendant's counsel whether such a decree would be effectual in New Jersey to bind the defend ant personally, he answered, "I have never known any case decided in New Jersey upon that point." In the absence of any statutory direction on the subject, and of any reported decision of the Supreme Court of that State, we are justified in finding the law to be as declared in the very case in hand where the chancellor of the chancery court of New Jersey has entered a final decree based upon an original bill, the process under which was served upon the defendant within the State, and upon a supplemental bill, a copy of which, with a rule to plead, was served upon the defendant without the state. So long as this decree stands it must be deemed to express the law of the State. If the defendant deemed himself aggrieved thereby, his remedy was by an appeal. In Cornett v. Williams, 20 Wall, 226, where, in a Circuit Court of the United States, an attempt was made to destroy the effect of a judgment rendered by a County Court by alleging error, this court said: "The power to review and reverse the decision so made is clearly appellate in its character, and can be exercised only by an appellate tribunal in a proceeding directly had for that purpose. It cannot and ought not to be done by another court, in another case, where the subject is presented incidentally, and a reversal sought in such collateral proceeding. The settled rule of law is that, jurisdiction having attached in the original case, everything done within the power of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights of the parties, unless impeached for fraud. Every intendment is made to support the proceeding. It is regarded as if it were regular, and irreversible for error. In the absence of fraud, no question can be collaterally entertained as to anything lying within the jurisdictional sphere of the original case. Infinite confusion and mischief would ensue if the rule were otherwise. These remarks apply to the order of sale here in question. The County Court had power to make it, and did make it. It is presumed to have been properly made, and the question of its propriety was not open to examination upon the trial in the Circuit Court. These propositions are sustained by a long and unbroken line of adjudications in this court. The last one was the case of McNitt v. Turner, 16 Wall. 366." The principle was very clearly expressed by Mr. Justice Baldwin, in Voorhees v. Bank, to Pet. 474: The line which separates error in judgment from the usurpation of power is very definite; and it is precisely that which denotes the cases where a judgment or decree is reversible only by an appellate court, or may be declared a nullity collaterally, when it is offered in evidence in an action concerning the matter adjudicated, or purporting to have been so. In the one case, it is a record importing absolute verity; in the other, mere waste paper. There can be no middle character assigned to judicial proceedings which are irreversible for error. Such is their effect between the parties to the suit, and such are the immunities which the law affords to a plaintiff who has obtained even an erroneous judgment or execution." This rule is recognized in the State of New York. In Kinnier v. Kinnier, 45 N. Y. 542, it was said: "A judgment of a sister State cannot be impeached by showing irregularities in the form of proceedings or a noncompliance with some law of the State relating thereto, or that the decision was erroneous. Jurisdiction confers power to render the judgment, and it will be regarded as valid and binding until set aside in the court in which it was rendered." Even if, therefore, it was the opinion of Mr. Dickinson, the defendant's expert witness, that the chancellor of New Jersey erred in think ing that jurisdiction over the defendant personally was conferred by the service on him within the State of the subpoena under the original bill, and by the service on him, without the State, of a copy of the supplemental bill and of a rule to plead, such opinion does not support the finding of the trial court that, under the laws of the State of New Jersey, the decree sued on and offered in evidence was not binding upon the defendant personally. The opinion of the chancellor differed from that of the witness, and, what is more important, his judgment was that, under the laws and practice of the State of New Jersey, the defendant was in his court, subject to its jurisdiction and. bound by its decree. |