Public-domain · open source
OpenJurist

4 A.D. 527

Bell v. Bell

Appellate Division of the Supreme Court of the State of New York

Decided April 15, 1896

Appellate Division of the Supreme Court of the State of New York · decided 1896-04-15

<p>Divorce—a judgment of divorce obtained in a State of which neither party is a resident, cmd without personal service of process or cm appearance, is void— reasonable alimony.</p> <p>In an action brought to procure a divorce upon the ground of adultery, in which the defendant alleged as one defense that the marriage of the parties had been dissolved by a court in the State of Pennsylvania, it appeared that the parties were married in Bloomington, Illinois, the residence of the plaintiff; -that after their marriage they lived at Rochester, the home of the defendant, for about two years, at the end of which time they moved to Buffalo, where they lived until 1882, when the plaintiff left the residence of the defendant in Buffalo and returned to the home of her mother at Bloomington, where" she lived until-1894 in which year she and her mother went "to Brooklyn and remained there until March', 1895, when the plaintiff took up her residence in New York city.</p> <p>In April, 1894 the defendant began an action in a court of Pennsylvania, alleging that he was a resident of that State, and that his wife had deserted him,, but no service of process was made upon the wife other than by publication. and through the mail. The defendant was not a resident of the State of Pennsylvania, and went there merely for the purpose of prosecuting the suit. The estate of the defendant was valued at $300,000.</p> <p>Held, that the divorce procured in Pennsylvania by the defendant was not bind- . ing upon the plaintiff;</p> <p>That as the plaintiff was not personally served with process in the action for a divorce and never appeared in it, the Pennsylvania court acquired no jurisdiction over her, and she was entitled to attack the judgment granted in that State;</p> <p>That an allowance of alimony at the rate of $3,000 a year was not excessive.</p>

Relies on Thompson v. Whitman · Laing v. Rigney · Williams v. . Williams

Decided 1896-04-15

Follett, J.:

¶1The plaintiff not having been personally served with process and never having- appeared in the action- prosecuted in the Court' of Common Pleas of the State of Pennsylvania, had the right to attack the judgment rendered by that court, on the ground that it never acquired jurisdiction -over her, and also, on the ground that the plaintiff in that action was not a citizen of Pennsylvania,. and it. was competent to support her contention by oral and documentary evi* dence. The recitals .in the Pennsylvania judgments were not con* elusive nor binding on her-. (Thompson v. Whitman, 18 Wall. 457; Kerr v. Kerr, 41 N. Y. 272; Cross v. Cross, 108 id. 628; Rigney v. Rigney, 127 id. 408; Vanfleet Col. Attack, §§ 388, 389, and cases cited.) It is not asserted that the plaintiff in this action ever resided in Pennsylvania, or that she was personally served with. *531process in that State, or that she appeared in that action, and the evidence is ample to sustain the finding of the referee that the defendant in this action was not a resident or citizen of Pennsylvania, but went there solely for the purpose.of instituting and prosecuting his suit for a divorce.

¶2These facts being well found, it is settled by along line of authorities in the courts of this State that the judgment of the Court of Common Pleas of Pennsylvania is not binding on the plaintiff, and is not a bar to her action for a divorce, (Kerr v. Kerr, 41 N. Y. 272; Kinnier v. Kinnier, 45 id. 535; Hoffman v. Hoffman, 46 id. 30; People v. Baker, 76 id. 78; O’Dea v. O’Dea, 101 id. 23; Jones v. Jones, 108 id. 415; Cross v. Cross, Id. 628; Rigney v. Rigney, 127 id. 408; S. C., sub. nom. Laing v. Rigney, 160 U. S. 531; Williams v. Williams, 130 N. Y. 193; Atherton v. Atherton, 82 Hun, 179.)

¶3It was shown that the defendant has an estate of the value of more than $300,000, and is in the receipt of a large annual income. During the married life of these parties the defendant owned and they occupied an expensive home, handsomely furnished; kept horses, carriages, a butler, a coachman and a number of servants, and the sum allowed to the plaintiff for alimony, with the income of her estate, will not enable her to live in the same style and position that she did during her married life. The defendant gave no satisfactory evidence of the amount of his estate, and we think the estimate of the referee of its value and of defendant’s income a conservative one, and that the sum allowed for alimony is not excessive.

¶4The judgment should be affirmed, with costs.

¶5All concurred.

¶6Judgment affirmed, with costs.

/4/ad/527 · .json · Public domain