MR. JUSTICE GRAY, after stating the case as above, delivered the opinion of the court.
The motion to dismiss this appeal for want of jurisdiction is made upon two grounds: 1st. That the decree appealed from is a decree dismissing a suit for divorce, and awarding to the appellee alimony and counsel fees pending that suit. 2d. That the matter in dispute does not exceed the sum of five thousand dollars, exclusive of costs.
The Revised Statutes of the United States conferred on this court jurisdiction, upon writ of error or appeal, to review and
Under the existing acts of Congress, therefore, (except in the cases so transferred to the Circuit Courts of Appeals, and in cases of habeas corpus, cases involving the validity of a copyright, and cases depending upon the Constitution or a statute or treaty of the United States — none of which classes
In order to sustain the appellate jurisdiction of this court, under such an enactment, the matter in dispute must have been money, or something the value of which can be estimated in money. Kurtz v. Moffitt, 115 U.S. 487, 495, 496, and cases there cited; Durham v. Seymour, 161 U.S. 235; Perrine v. Slack, 164 U.S. 452.
In support of the motion to dismiss this appeal because the decree below concerned divorce and alimony only, the appellee relied on Barber v. Barber, 21 How. 582. In that case, a majority of this court held that a wife who had obtained against her husband, in the courts of the State of their domicil, a decree, divorcing them from bed and board and awarding alimony to her, might sue the husband for such alimony in a Circuit Court of the United States held in a State in which he had since become domiciled. Mr. Justice Wayne, in delivering judgment, said: "We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony, either as an original proceeding in chancery, or as an incident to a divorce a vinculo, or to one from bed and board." 21 How. 584. And from that proposition there was no dissent. It may therefore be assumed as indubitable that the Circuit Courts of the United States have no jurisdiction, either of suits for divorce, or of claims for alimony, whether made in a suit for divorce, or by an original proceeding in equity, before a decree for such alimony in a state court. Within the States of the Union, the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the State, and not to the laws of the United States. In re Burrus, 136 U.S. 586, 593, 594.
But those considerations have no application to the jurisdiction of the courts of a Territory, or to the appellate jurisdiction
By the territorial statutes of Arizona, the original jurisdiction of suits for divorce is vested in the district courts of the Territory; and their final judgments in such suits, as in other civil cases, may be reviewed by the Supreme Court of the Territory on writ of error or appeal. Arizona Rev. Stat. of 1887, tit. 34, c. 4; tit. 15, c. 20.
As already observed, the motion to dismiss, in the case at bar, is made upon the twofold ground that the decree appealed from is one concerning divorce and alimony only, and that it is for no more than $5000.
The decree of the Supreme Court of the Territory in favor of the wife includes the dismissal of the husband's suit for a divorce from the bond of matrimony, and the award to the wife, upon her motion, of the sum of $5250 for alimony and counsel fees.
So far as the question of divorce was concerned, the matter in controversy was the continuance or the dissolution of the status or relation of marriage between the parties, and the decree cannot be reviewed on this appeal; both because that was a matter the value of which could not be estimated in
The decree for alimony and counsel fees, although in one sense an incident to the suit for divorce, is a distinct and severable final judgment in favor of the defendant for a sum of money of a sufficient jurisdictional amount, and is therefore good ground of appeal, for the same reason that a judgment for or against the defendant upon a counter claim of like amount would support the appellate jurisdiction. Dushane v. Benedict, 120 U.S. 630, 636; Stuart v. Boulware, 133 U.S. 78; Block v. Darling, 140 U.S. 234.
It was argued for the appellee that the decree of the Supreme Court of the Territory in her favor for alimony and counsel fees was not really for more than the sum of $5000, because before that decree was rendered, or the case submitted to that court, she had filed a remittitur of the excess above that sum. But its final judgment, as actually entered, having been for the sum of $5250, the question whether the remittitur was erroneously disregarded touched the question what that court should have done, and not what it actually did; in other words, a question of error, and not of jurisdiction.
Had there been no local statute on the subject of remittitur, it would have been within the discretion of the court, before rendering judgment, to allow a remittitur reducing the sum recovered below the amount required to sustain an appeal; and, if the court had done so, and had rendered judgment for the reduced sum, the appeal must have been dismissed. Alabama Ins. Co. v. Nichols, 109 U.S. 232; Pacific Telegraph Co. v. O'Connor, 128 U.S. 394; Texas & Pacific Railway v. Horn, 151 U.S. 110.
The making of a remittitur, in this case, did not depend upon the discretion of the court, but was authorized and regulated by the statutes of the Territory. While the right of appeal to this court from the courts of the Territory is governed by the acts of Congress, the proceedings in the territorial courts are regulated by the territorial statutes.
Those statutes, in a subsequent section, provide that "if in any judgment rendered in the district court there shall be an excess of damages rendered, and, before the plaintiff has entered a release of the same in such court in the manner provided by law, such judgment shall be removed to the Supreme Court, it shall be lawful for the party in whose favor such excess of damages has been rendered to make such release in the Supreme Court in the same manner as such release is required to be made in the district court."
This section again, construed together with the earlier sections, clearly authorizes either party, whether plaintiff or defendant, in whose favor a judgment for a sum of money has been rendered in the district court, and who has made no remittitur or release of part thereof in that court, to make the same in the Supreme Court of the Territory.
The section concludes by enacting that, "upon such release
The only departure from the provisions of these statutes in the case at bar, as appearing by the record transmitted to this court, is that the clerk's attestation upon the defendant's release or remittitur was a blank form without the clerk's signature or the seal of his office. But the appellant in his brief, while contending in general terms that the course prescribed by the statute had not been pursued, made no specific objection to the proceedings except that the right to remit was given to the plaintiff only. And in the material parts of the record, as set forth in the brief of the appellee, the attestation to the release appears to have been signed by the clerk and under seal. It is possible that the signature and seal may have been inadvertently omitted in the record transmitted to this court. But, however that may have been, the attestation of a release filed in vacation, like the noting on the docket and entry in the minutes of a remittitur made in open court, was an act to be done by the clerk, and not by the party; its sole object in either case was to verify the act of the party; and when, as in this case, the release was executed by the party's attorneys of record, and was both filed and recorded in the Supreme Court of the Territory, while the case was pending in that court, we are of opinion that the statute was so substantially and sufficiently complied with as to render the release of part of the judgment below valid, and to make it the duty of that court to give effect to the release, and, according to the express terms of the statute, "after revising said judgment," to "proceed to give such judgment as the court below ought to have given if the release had been made and filed therein."
If that court had duly given effect to the release, and had rendered in other respects the same decree that it has rendered, the case would not have been appealable. This case is appealable because, and solely because, the decree rendered by that court is for a sum of more than $5000. If this court
The just and appropriate way of disposing of the case appears to this court to be to affirm the validity of the release or remittitur which the Supreme Court of the Territory erroneously ignored, to leave the case as if that court had performed its duty in this regard, and, without considering whether there was any other error in the decree for alimony and counsel fees, to order that the
Decree of the Supreme Court of the Territory of Arizona for $5250 be modified so as to stand as a decree for $5000, and, as so modified, affirmed, with costs.
MR. JUSTICE WHITE and MR. JUSTICE PECKHAM dissented.