may apply to the court for an order requiring the witness to obey his subpena, and if such order is made, a failure to comply with it may be punished as a contempt.

Where provision is made authorizing the court to strike out the pleading of a party for a failure to appear and testify, it must appear that the party was duly served with process issued by some proper court or officer.'

It is held that a court must, where the offense is committed in the presence of the court, proceed to punish without delay, or it will lose jurisdiction to punish at all.2

The rendition of final judgment terminates the jurisdiction of the court, as in other cases, except to enforce the judgment.3

73. DIVORCE.—In the early history of England divorces were granted by act of Parliament. And the right of legislative bodies to grant divorces, in the absence of any constitutional provision against it, has been recognized and upheld in this country. But the power to determine whether a divorce should be granted or not is essentially judicial in its nature and should be committed to the courts alone. And so it has been, with very few exceptions, in the different states. And where divorces by legislative bodies have been upheld the exercise of the power has been regarded as judicial in its nature.

1 Bish v. Beatty, 111 Ind. 403; 12 N. E. Rep. 523; White v. Morgan, 119 Ind. 338; 21 N. E. Rep. 968.

In re Foote, 76 Cal. 543; 18 Pac. Rep. 678.

Barry v. Superior Court, 91 Cal. 486; 27 Pac. Rep. 763.

Sharon v. Sharon, 67 Cal. 185, 190; 7 Pac. Rep. 456, 635; 8 Pac. Rep. 709; Maynard v. Hill, 125 I. S. 190; 8 Sup. Ct. Rep. 723; 1 Bishop Mar. & Div., sec. 662.

5 Doughty v. Doughty, 28 N. J. Eq. 581, 584; Maynard v. Hill, 125 U. S. 190; 8 Sup. Ct. Rep. 723; Jones v. Jones, 11 Sou. Rep. 11; Cooley Const. Lim. p. 109; 1 Bishop Mar. & Div., sec. 664.

6 Maynard v. Hill, 125 U. S. 190; 8 Sup. Ct. Rep. 723; Jones v. Jones, 11 Sou. Rep. 11; Cooley Const. Lim. *p. 109; In re Higbee, 4 Utah, 19: 5 Pac. Rep. 693; Sparhawk v. Sparhawk, 116 Mass. 315.

'Cooley Const. Lim. *p. 110; 1 Bishop Mar. & Div., sec. 680.

In re Higbee, 4 Utah, 19; 5 Pac. Rep. 693; Jones v. Jones, 12 Pa. St. 350; 51 Am. Dec. 611.

A special statute authorizing a court to grant a divorce between individuals named, where the jurisdiction has been by the general law committed to the courts, and where under such general law a divorce could not be decreed, is unconstitutional.' So a statute providing that divorces from bed and board, theretofore granted, should be deemed and taken to be and have the force and effect of absolute divorces, was held to be unconstitutional and void.2

In England the jurisdiction was formerly vested in the ecclesiastical courts. But at the present time it is committed by statute to the supreme court, and is exercised by the probate, divorce, and admiralty divisions of that court.*

In this country the jurisdiction is given to different courts in the different states. And the jurisdiction of the ecclesiastical courts in matters of divorce, although a part of the common law of that country, was not transmitted to the ordinary law courts of this country. But when a court is vested with such jurisdiction it is entitled, and it is its duty, to exercise it according to the general principles of the common law on the subject, and the practice of the English courts, so far as they are suited to our condition and the general spirit of our laws, or are modified by statute.5

It is generally held that the jurisdiction is wholly statutory, and that without some statute authorizing it it can not be exercised." And that the grant to a court of common law and equity jurisdiction does not confer jurisdic

1 Simonds v. Simonds, 103 Mass. 572; 4 Am. Rep. 576; Jones v. Jones, 11 Sou. Rep. 11. See also Sparhawk v. Sparhawk, 116 Mass. 315. Sparhawk v. Sparhawk, 116 Mass. 315.

2

3 Le Barron v. Le Barron, 35 Vt. 364.

'Ante, sec. 3.

'Le Barron v. Le Barron, 35 Vt. 364; Mangels v. Mangels, 6 Mo. App. 481.

"Hopkins v. Hopkins, 39 Wis. 167; Cook v. Cook, 56 Wis. 195; 14 N. W. Rep. 33; Birkby v. Solomons, 15 Ill. 120; Le Barron v. Le Barron, 35 Vt. 364.

2

tion in divorce cases. There are cases that hold the jurisdiction to be equitable and that it is included in a general grant of jurisdiction in equity cases. But while there are matters connected with and incidental to the granting of divorces that are equitable, the mere power to grant a divorce certainly does not belong to the general jurisdiction of a court of chancery. Such jurisdiction is conferred upon courts of chancery by statute in some of the states, but it is none the less statutory jurisdiction.5

It is held that an action for divorce is a civil proceeding under the code, and that a grant of jurisdiction "in all civil cases, both at law and in equity," confers jurisdiction in divorce cases."

The rules affecting jurisdiction in this class of cases are peculiar. The jurisdiction includes the granting of divorces, the allowance of alimony, the determination, generally, of the property rights of the parties, and the custody and maintenance of children. The three latter are incidental to the jurisdiction to grant the divorce. But they are not necessarily dependent upon it. Jurisdiction as to these may exist independently of the pendency of an action. for divorce, or the power to exercise jurisdiction in divorce cases. This is not so, however, in all of the states. In some it is held that, under their statutes, a claim for alimony is not the subject-matter of a separate suit, but is only auxiliary to, or an incident of, an action for a divorce.'

8

1 Kenyon v. Kenyon, 24 Pac. Rep. 829.

2 Sharon v. Sharon, 67 Cal. 185; 7 Pac. Rep. 456, 635; 8 Pac. Rep. 709; Lyons v. Lyons, 18 Cal. 448.

3 Laughery v. Laughery, 15 Ohio, 404.

5 Bascom v. Bascom, 7 Ohio (part 2), 126; Laughery v. Laughery, 15

Ohio, 404.

Ellis v. Hatfield, 20 Ind. 101.

7 Mott v. Mott, 82 Cal. 413; 22 Pac. Rep. 1140.

Galland v. Galland, 38 Cal. 265; Poole v. Wilbur, 95 Cal. 339, 342; 30 Pac. Rep. 548; Woods v. Waddle, 44 Ohio St. 449; 8 N. E. Rep. 297; Crugom v. Crugom, 64 Wis. 253; 25 N. W. Rep. 5.

9 Damon v. Damon, 28 Wis. 510; Cook v. Cook, 56 Wis. 195; 14 N. W. Rep. 33.

In order to authorize the court to render a decree affecting the property of the parties, an issue with reference to it must be presented by the pleadings.1

The means of acquiring jurisdiction and the power to exercise it is different in the divorce proceeding proper and the matters above referred to as incidental to such proceedings, and the court may have jurisdiction to determine the question of divorce, and be wholly without jurisdiction to deal with these incidental matters.2 This grows out of the difference in the nature of the remedies to be administered in each.

The power to grant divorces is one that affects the status of the parties merely; the action is not personal, but is the same in legal effect as an action in rem.3 Although it has been held that, for some purposes, it is an action upon contract. But this decision, holding that an action for divorce is one upon contract, is not in harmony with the general rule on the subject. Personal service upon the defendant is not necessary, and where such defendant is a non-resident, jurisdiction may be obtained by publication, or by service out of the state, which is the same in legal effect." But it is otherwise with reference to the granting of alimony. The remedy here is personal, and a decree or judgment against a non-resident defendant for alimony can only be granted upon personal service, or an appearance, or other waiver of service. But a state may authorize judgments for alimony against its

1 Remmington v. Superior Court, 69 Cal. 633; 11 Pac. Rep. 252. Cooley Const. Lim., pp. 405, 406.

3 Roth v. Roth, 104 Ill. 35; 44 Am. Rep. 81; Ellison v. Martin, 53 Mo. 575; In re Newman, 75 Cal. 213; 16 Pac. Rep. 887.

Mott v. Mott, 82 Cal. 413; 22 Pac. Rep. 1140.

5 Adams v. Palmer, 51 Me. 481; Wade v. Kalbfleisch, 58 N. Y. 282; 17 Am. Rep. 250; Noel v. Ewing, 9 Ind. 37; Maynard v. Hill, 125 U. S. 190; 8 Sup. Ct. Rep. 723; 1 Bishop Mar. & Div., sec. 667.

6 Pennoyer v. Neff, 95 U. S. 714, 733; Gould v. Crow, 57 Mo. 200; Ellison v. Martin, 53 Mo. 575; Burlen v. Shannon, 115 Mass. 438; Cooley Const. Lim., p. 405.

'Prosser v. Warner, 47 Vt. 667; 19 Am. Rep. 132; Beard v. Beard, 21 Ind. 321; ante, sec. 13, p. 42; secs. 14, 32, 33, 38; Pennoyer v. Neff, 95 U. S. 714; Ellison v. Martin, 53 Mo. 575; Cooley Const. Lim., * p. 406.

own citizens upon constructive notice, where there is no constitutional provision against it.'

Each of the states has the power to determine the status of its citizens, and upon what service, and upon what conditions, divorces may be granted as between them.2 The law of the domicile controls, with respect to the jurisdiction of the court. And decrees granted, as between its own residents, are respected in other states, both because of the provision of the constitution of the United States that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state," and because of the general principle of comity between states and nations."

In some of the states it is eo expressly provided by statute. The same rule obtains with respect to the judgments of courts of foreign countries. And judgments are enforced, generally, where the plaintiff is a resident of the state

1 Ante, secs. 13, 14, 32, 33; Beard v. Beard, 21 Ind. 321.

2 Hubbell v. Hubbell, 3 Wis. 662; 62 Am. Dec. 702; Cook v. Cook, 56 Wis. 195; 14 N. W. Rep. 33; Cox v. Cox, 19 Ohio St. 502, 510; 2 Am. Rep. 415; Prosser v. Warner, 47 Vt. 667; 19 Am. Rep. 132; Kinnier v. Kinnier, 45 N. Y. 535; 6 Am. Rep. 132; Doughty v. Doughty, 28 N. J. Eq. 581, 584; Beard v. Beard, 21 Ind. 321; Strader v. Graham, 10 How. 82, 93; Hunt v. Hunt, 72 N. Y. 217; 28 Am. Rep. 129; Sewall v. Sewall, 122 Mass. 156; 23 Am. Rep. 299; Gregory v. Gregory, 78 Me. 187; 3 Atl. Rep. 280; 57 Am. Rep. 792; Butler v. Washington; 12 Sou. Rep. 356; Cooley Const. Lim., pp. 400-405; 2 Bishop Mar. & Div. 137.

3 Tolen v. Tolen, 2 Blkf. (Ind.) 407; 21 Am. Dec. 743; Hood v. State, 56 Ind. 263, 268; 26 Am. Rep. 21; Kinnier v. Kinnier, 45 N. Y. 535; 6 Am. Rep. 132; Gregory v. Gregory, 78 Me. 187; 3 Atl. Rep. 280; 57 Am. Rep. 792; Thomson v. Thomson, 91 Ala. 591; Sou. Rep. 419; Butler v. Washington, 12 Sou. Rep. 356; Cooley Const. Lim., pp. 400, 401; 2 Bishop Mar. & Div., sec. 138.

Const. U. S., Art. IV, sec. 1; ante, sec. 23, p. 127; Gould r. Crow, 57 Mo. 200; Wakefield v. Ives, 35 Ia. 238; Gregory v. Gregory, 78 Me. 187; 3 Atl. Rep. 280, 282, note; 57 Am. Rep. 792; Reed v. Reed, 52 Mich. 117; 17 N. W. Rep. 720.

5 Hubbell v. Hubbell, 3 Wis. 662; 62 Am. Dec. 702; Cox v. Cox, 19 Ohio St. 502, 510; 2 Am. Rep. 415; Van Orsdal v. Van Orsdal, 67 Ia. 35; 24 N. W. Rep. 579; Tolen v. Tolen, 2 Blkf. (Ind.) 407; 21 Am. Dec. 743; Smith v. Smith, 10 Sou. Rep. 248.

Burlen v. Shannon, 115 Mass. 438.

Roth v. Roth, 104 Ill. 35; 44 Am. Rep. 81.