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 IV 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 domicil 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,
"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 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... . Service within the State was found to be, under the law and practice of the Court of Chancery of New Jersey, an indispensable prerequisite to the rendition of a personal judgment." Rigney v. Rigney, 127 N.Y. 408, 415.
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. Dickenson, an attorney and counsellor 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 subpœna issued under the supplementary bill and no appearance, the defendant would, as to the new matter contained in the supplementary 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 subpœna on any supplemental bill, nor was
The plaintiff put in evidence so much of the revision as related to the Court of Chancery, and which disclosed no provision whatever requiring a new subpoena to be issued on any supplementary bill filed in the Court of Chancery, but it does contain provisions whereby orders directing absent defendants, whether within or without the State, to respond to the bill, and, on proof of personal service of such order, the chancellor may proceed to take evidence to substantiate the bill, and to render such decree 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. New Jersey Rev. Stat. 1877.
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, absents himself from the State, and when a supplemental bill is filed in the suit, service on him of a new subpoena within the State is an indispensable prerequisite to the rendition of a personal decree on such supplemental bill.
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, 249, 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 mischiefs 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
The principle was very clearly expressed by Mr. Justice Baldwin in Voorhees v. Bank of United States, 10 Pet. 449, 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 an erroneous judgment or execution."
This rule is recognized in the State of New York. In Kinnier v. Kinnier, 45 N.Y. 535, 542, it was said: "A judgment of a sister State cannot be impeached by showing irregularities in the form of proceedings or a non-compliance with some law of the State where the judgment was rendered 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. Dickenson, the defendant's expert witness, that the chancellor of New Jersey erred in thinking that jurisdiction over the defendant personally was conferred by the service on him within the State of the subpœna 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,
It is contended on behalf of the plaintiff in error that, even if the defendant could not have been personally bound by a decree based on the supplemental bill because a subpœna thereunder had not been served upon him within the State of New Jersey, yet that, as the defendant, after the entry of such a decree against him, appeared in the New Jersey court by counsel, and procured a modification of the decree, he thereby subjected himself to the decree as amended.
It is also claimed that, as he admits that he acquiesced in and ratified the decree, by accepting that portion thereof which relieved him from the contract of marriage, he cannot be heard to impeach the decree in dealing with the change thus caused in his marital relations by subjecting him to the payment of costs and alimony.
The fact that the defendant appeared and procured an amendment of the decree and its enrolment in its final form, took place after the bringing of the present suit, and, to form the basis for the contention that he thereby subjected himself to the decree as amended, such fact ought, perhaps, to have been made to appear by an amended or supplemental petition. But as the amended decree was put in evidence by the defendant himself, and was treated by the New York courts as the final decree, whose effect they were considering, we shall regard the amended decree as the real ground of the plaintiff's action.
As the appearance of the defendant was not for the purpose of objecting to the jurisdiction of the court, but was rather in the nature of an appeal to its jurisdiction, and as the objection successfully made to the decree as originally enrolled was restricted to one of its recitals, and did not attack the decree in the respect that it adjudged that he should pay the costs and alimony, there is force in the view that he thereby waived any right to further object to the decree. At all events, he could not successfully attack the decree collaterally in a court of different jurisdiction, but his remedy, if any he had, would be by way of appeal.
As this record discloses that the defendant was served with process under the original bill, and appeared by counsel, and made answer, and was personally served with a copy of the supplemental bill and with an order to plead, and, after permitting himself to be defaulted, did appear by counsel and procured the vacation of the original decree and the enrolment of the decree amended in accordance with his own motion, it may fairly be said that he both had an opportunity to be heard and was heard. His appearance by counsel under the supplementary proceedings was not to object to the jurisdiction of the court, but to effect a change in the recitals of the decree on non-jurisdictional grounds. As before stated, we do not deem it necessary to consider the contention on behalf of the plaintiff in error that by such appearance the defendant estopped himself from alleging error in the decree when thus amended, but we think he certainly precluded himself from now contending that he has been deprived of his property within the meaning of the Federal Constitution.
As, then, the evidence of the defendant did not avail to show want of jurisdiction on the part of the Chancery Court of New Jersey to render the decree in question, and as it was admitted that the decree remained wholly unpaid, the plaintiff below was entitled to judgment.
The judgment of the Supreme Court is hereby reversed, and the case is remanded to the Supreme Court for further proceedings not inconsistent with the opinion of this court.