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country of his domicile and before he has otherwise entered the state where the service is thus made: Peabody v. Hamilton, 106 Mass. 217.

Corporations Doing Business Within a State Other than that of Their Residence subject themselves to this rule, and its courts have jurisdiction over them to the extent of compelling them to submit to their jurisdiction any controrersy arising out of the business so done: Fireman's Ins. Co. v. Thompson, 155 Ill. 204; 46 Am. St. Rep. 335; State v. Northwestern etc. Assn., 62 Wis. 174; State v. United States etc. Assn., 67 Wis. 624; note to Hampson v. Weare, 66 Am. Dec. 121,

An exception to the rule that courts of a state or country in which a person happens to be, though temporarily, have jurisdiction over him arises when he is caused to go there through some fraud practiced upon him by or on behalf of his adversary for the purpose of compelling him to appear in court to whose jurisdiction he not subject: Duringer v. Moschino, 93 Ind. 495; Dunlap v. Cody, 31 lowa, 260; 7 Am. Rep. 129; Toof v. Foley, 87 Iowa, 8; Townsend v. Smith, 47 Wis. 623; 32 Am. Rep. 793.

One Learing a State or Country, Intending not to Return, ceases from that moment to be subject to the jurisdiction of its courts in the sense that they cannot render any valid judgment in personam against him based upon process served on him in an action or proceeding commenced after his departure: Freeman on Judgments, sec. 570; Mastin v. Gray, 19 Kan. 458; 27 Am. Rep. 149; Amsbaugh v. Exchange Bank, 33 Kan. 100. Whether the courts of a country entitled to exercise jurisdiction over a party when the action therein was begun can retain that jurisdiction only by serving process before he has departed therefrom is a question which, so far as we are aware, has escaped judicial consideration.

A Decree of Divorce is regarded as a judgment in rem rather than in personam, and hence may be operative against a defendant though rendered in a state or country in which he has never been and by a court to whose jurisdiction he did not voluntarily submit himself. The courts of the different states and countries do not entirely agree respecting the circumstances in which it is so operative. All, we think, concur in aflirming that in no case can the plaintiff in a suit for divorce obtain a valid decree against a nonresident defendant who had not voluntarily appeared in the action, unless such plaintiff is a bona fide resident of he state or country in which the suit was brought and that a collusive or temporary change of domicile for the purpose of conferring jurisdiction upon a court is unavailing: Freeman on Judgments, secs. 580-585; note to Tolen v. Tolen, 25 Am. Dec. 747-752; Hood v. State, 56 Ind. 263; 26 Am. Rep. 21; Neff v. Beauchamp, 74 Iowa, 92; Shannon v. Shannon, 4 Allen, 134; Sewall 5. Sewall, 122 Mass. 162; 23 Am. Rep. 299; Leith v. Leith, 39 N. H. 20; Hoffman v. Hoffman, 46 N. Y. 30; 7 Am. Rep. 299; Pitt v. Pitt, 4 Macq. H. L. Cas. 627; though both the parties consent thereto: Bonaparte v. Bonaparte (1892), L. R. Prob. Div. 402. If neither spouse is a resident of the state or country, the judgment of its courts attempting to divorce them is void in the state or country of their actual residence: Watkins v. Watkins, 125 Ind. 163; 21 Am. St. Rep. 217; People v. Dawell, 25 Mich. 247; 12 Am. Rep. 260; St. Sure v. Lindsfeldt, 82 Wis. 346; 33 Am. St. Rep. 50; Hood v. State, 56 Ind.

263; 26 Am. Rep. 321; Van Fossen v. State, 37 Ohio St, 317; 41 Am. Rep. 507. This statement may be subject to the qualification that one of the consenting parties is often estopped, in proceedings re specting property rights from avoiding the effect of the decree by urging his own fraud in procuring it, and as to such rights may be compelled to concede its validity: Ellis' Appeal, 55 Minn. 401; 43 Am. St. Rep. 514; Kinnear v. Kinnear, 45 N. Y. 533; 6 Am. Rep. 132. In fact, as a general rule, one who has acted upon a decree of diForce, treating it as valid, or doing acts which are criminal, unless It is effectual to destroy the pre-existing marital relation, is estopped, in controrersies respecting property, from insisting that it was entered by a court having no jurisdiction, and is therefore invalid: Marvin v. Foster, 61 Minn. 156; 52 Am. St. Rep. 586.

On the other hand, a bona fide resident of a state may there prose cute a suit for divorce against a nonresident spouse, and obtain a decree which will dissolve the marriage tie, though the defendant does not appear in the proceeding, and the service of process is constructive, or is made outside of the state: Dunham v. Dunham, 162 Ill. 589; Smith v. Smith, 43 La. Ann. 1140; Franklin v. Franklin, 134 Mass. 515; 26 Am. St. Rep. 266; Loker v. Gerald, 157 Mass. 42; 34 Am. St. Rep. 252; Jones v. Jones, 67 Miss. 195; 19 Am. St. Rep. 299. This view does not meet with the concurrence of all the courts. Some of them deny the power of the courts of any state or country to call before them any married person not a resident thereof for the purpose of answering a bill for divorce, though brought by a resident of the state in which it is pending, and declare that a judgment rendered therein, unless based upon a voluntary appearance of the de fepdant is void as against him: People v. Baker, 76 N. Y. 78; 32 Am. Rep. 274; Jones v. Jones, 108 N. Y. 415; 2 Am. St. Rep. 447; Willlams y. Williams, 130 N. Y. 193; 27 Am. St. Rep. 517; Harris v. Harris, 115 N. C. 587; 44 Am. St. Rep. 471; Green v. Green (1893), L. R. Prob. Div. 89; especially if the cause of divorce is not recognized by the laws of the state in which he lives or in which the marriage was contracted: McCreery v. Davis, 44 S. C. 195; 51 Am. St. Rep. 794. The position of the courts of New York upon this subject is somewhat difficult to understand, and for this reason, instead of undertaking to summarize it, we shall make the following quotation from one of their recent decisions: “A suit for divorce, though not strictly a protreding in rem (Cole v. Cunningham, 133 U. S. 107, 116; Mankin v. Chandler, 2 Brock. 127; 2 Bishop on Marriage, Divorce, and Separation, sec. 20; Drake on Attachment, sec. 3), 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; 32 Am. Rep. 274; 2 Bishop on Marriage, Divorce, and Separation, sec. 23; 2 Black on Judgments, sers. 925, 933. The courts of the United States and those of most of the sereral 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 pro cess in the state wherein the divorce is granted: Cheever V.

on

Wilson, 9 Wall. 108; Pennoyer v. Neff, 95 U. S. 714; People v.
Baker, 76 N. Y. 78; 32 Am. Rep. 274; Doughty V. Doughty, 28
N. J. Eq. 581; Cooley's Constitutional Limitations, 400; 2 Bishop

Marriage, Divorce, and Separation, seas. 150, et seq. But the courts of this and some of the states hold that the marital status of such nonresident defendant is not changed by a judgment 60 recovered, he or she remaining a married person: People v. Baker, 76 N, Y. 78; 32 Am. Rep. 274; O'Dea v. O'Dea, 101 N. Y. 23; Jones v. Jones, 108 N. Y. 415; 2 Am. St. Rep. 447; Cross v. Cross, 108 N. Y. 628; Cook v. Cook, 56 Wis. 195; 43 Am. Rep. 706; Doughty F. Doughty, 28 N. J. Eg. 581; Flower v. Flower, 42 N. J. Eq. 152; 2 Bishop on Marriage, Divorce, and Separation, secs. 153, et seq.; 2 Black on Judgments, sec. 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 process be duly made: Hunt v. Hunt, 72 N. Y. 217; 28 Am. Rep. 129; Hood v. Hood, 11 Allen, 196; 87 Am. Dec. 709"; Rigney v. Rig. ney, 127 N. Y. 408; 24 Am. St. Rep. 462.

But even in those states and countries in which suits for divorce are treated as proceedings in rem, it is conceded that the relief granted therein may be of a personal character, and that in so far as it is such, the defendant cannot be bound, unless he was either subject to the jurisdiction of the court or voluntarily submitted himself thereto. In so far as costs may be awarded against him, or he may be directed to pay a sum of money as alimony, the judgment is personal, and cannot be upheld where the circumstances would render it invalid if the cause of action were an ordinary money demand: Freeman on Judgments, sec. 586; Townsend v. Griffin, 4 Harr. 440; Bear v. Beard, 21 Ind. 321; Crane v. Meginnis, 1 Gill & J. 463; 19 Am. Dec. 237; Gould v. Crow, 57 Mo. 200; Rigney v. Rigney, 127 N. Y. 408; 24 Am. St. Rep. 462. It has been said that such a decree cannot affect the property rights of the defendant existing in the state of which he remains a resident: Doerr v. Forsythe, 50 Ohio St. 726; 40 Am. St. Rep. 703. This statement must, we think, be subject to much qualification, for if the decree of divorce be valid, it must necessarily affect those property rights growing out of the status of marriage, and therefore ought to deprive either party of any interest in the estate or property of the other which is dependent upon the fact of their being husband and wife. It must also necessarily destroy the right of either to demand that the other make provi. sion for his or her support, and therefore it is generally a sullicient defense to an action by a wife to recover alimony that a judgment of divorce has been rendered against her in another state, of which her busband was at the time a bona fide resident, though she had never been therein: Roe v. Roe, 52 Kan. 724; 39 Am. St. Rep. 367. Courts having jurisdiction of suits for divorce may also, doubtless, make division of property situate within their jurisdiction, in which the spouses have an interest, and may sometimes award the use, or even the title thereof, to the party aggrieved when so authorized by the local laws, and this, we apprehend, is true though the service of process is constructive.

Children remaining in the cusiody of a nonresident defendant are

1

not within the jurisdiction of the court, and any provision in its de cree undertaking to award their custody to the plaintiff is inoperative in the state of their residence: Kline v. Kline, 57 Iowa, 386; 42 Am. Rep. 49; Woodworth v. Spring, 4 Allen, 321. The plaintiff procuring a divorce may, however, be a bona fide resident of the state in which the suit was brought, and have residing with him or her the children of the marriage, and part of the relief sought by the complaint may relate to their custody, and in that event a question somewhat different from that arising when the children are nonresidents is presented for consideration, and the few cases in which it has been involved have resulted in decisions respecting and enforcing judgments awarding the custody to the person with whom they reside, though the defendant was proceeded against by constructive service of process, and was not within the jurisdiction of the state in which the judgment was rendered: Wakefield v. Ives, 35 Iowa, 238; People v. Allen, 40 Hun, 611.

A judgment in a suit for divorce, though defendant is a nonresident, is not, we submit, necessarily confined to the mere dissolution of the marital relations. The parties may have both children and property within the territorial jurisdiction of the court, and the circumstances may be such as to show that the complainant ought to have the custody of the one and either all or some share in the other, and it is unreasonable to hold that no redress whatever can be had because one of the parties is a fugitive from justice, or is, at all events, beyond the state. If the court, in case the defendant were present in the state, had jurisdiction to decree any relief in favor of the plaintiff, other than that of a judgment for moneys, enforceable by execution, such jurisdiction should extend to granting Hike relief, though the service of process is constructive and the defendant beyond the state. Hence, if the court has jurisdiction to divide the property acquired during the marriage, or to set aside either that or other property for the use of the aggrieved spouse, that jurisdiction should not be deemed divested by the circumstance that the defendant is not within the state, and therefore that part of the decree awarding lands within the state and alimony ought to be respected and enforceable, though the defendant was a nonresident: Wesner v. O'Brien, 56 Kan. 724.

As to Minors, the Jurisdiction to Appoint Guardians of their persons is, as a general rule, vested exclusively in the courts of the state or country in which they are domiciled, while guardians of their estate may be appointed in any jurisdiction in which they have property: Grier v. McLendon, 7 Ga. 362; Davis v. Hudson, 29 Minn. 27; West Duluth Land Co. v. Kurtz, 45 Minn. 380; Neal v. Bartleson, 65 Tex. 478. In England, however, an inquiry will be made as to whether they are, in contemplation of law, subjects, and if they are, jurisdiction over them will be exercised by the courts of that country, whether such minors are within it or not: In re Willoughby, 30 Ch. Div. 324; Hope v. Hope, 4 De Gex, M. & G. 328. This rule is based upon what appears to be a very just principle, namely, that every subject is entitled to the aid and protection of the courts of his sovereign, whether be happens to be within the country or not.

We have used the word "nonresidents" in this note to designato persons who are not only beyond the confines of the state or country, but were not citizens of it, and did not owe allegiance to its government or any duty to obey its laws or submit to the jurisdiction of its courts, except with respect to their claims to property situate within their territorial jurisdiction; and this is the sense in which we think it has been generally, if not universally, employed by judges and text-writers in asserting, as they all undoubtedly do, that the courts of one state or country cannot exercise jurisdiction over residents of another. In other words, until the deci. bion was pronounced in the principal case, we did not understand that the courts of any state or nation were without jurisdiction over citizens thereof the moment any of them, for any purpose, went beyond its limits. In England, such is not the case. The courts of that country will not refuse to give effect to a foreign judgment on the ground that the defendant was not personally within the jurisdiction of the court, and was not served with process within the country. They will ascertain whether he owed allegiance to the nation whose courts proceeded against him in his absence, and, if so, will give effect to a judgment rendered against him, based upon process served in the mode exacted by the laws of the country: Bacquet V. MacCarthy, 2 Barn. & Adol. 951; Douglas v. Forest, 4 Bing. 686; Cowan v. Braidwood, 9 Dowl. Pr. 27; Gauthier v. Blight, 5 U. C. C. P. 122; Vallee v. Dumerque, 4 Ex. 290. Notwithstanding the decl. sion in Peonoyer v. Neff, 95 U. S. 714, we still, as we have already indicated, understand this to be the law in this country, for there is nothing in the facts of that case or in the opinion of the court showing that it was considering the law applicable to a judgment pronounced in a state upon constructive service of process, but against one who was still a citizen thereof, and domiciled therein. We believe, however, that the principal case is the only one in a court of last resort in this country in which the question to which we reser was necessarily presented and decided after a thorough discussion, and that other expressions of opinion upon the subjeot may either be characterized as dicta, or as being opinions of inferior appellate tribunals, or as being pronounced without any apparent conception of the novelty and gravity of the question determined. They are, nevertheless, worthy of attention, and we shall therefore proceed to refer to some of them.

The case of Burnam v. Commonwealth, 1 Duvall, 210, was one presenting for judicial construction a statute of the state of Kentucky authorizing proceedings against the governor, members of council, and other officers of the provisional government for the recovery of public revenue seized by them. The proceedings were conducted in the mode prescribed by the act and without either actual service or appearance, and a judgment was rendered against the defendants jointly. This judgment was reversed for various errors in the proceeding, but the court said respecting the statute, which was undoubtedly one authorizing a personal judgment against defendants in their absence, that: “We cannot adjudge any provision in the act to be unconstitutional. As in other cases when actual notice cannot be given to absent defendants, there must either be no remedy, or constructive notice must be substituted as

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