Rogers v. Rogers , 54 Ky. 364 ( 1854 )

Judge Simpson

delivered the opinion of the Court—

In 1843 Melancthon Rogers exhibited his bill in chancery in the Kenton Circuit Court, in this State, to obtain a divorce from his wife, Margaret Rogers, on the alleged ground of abandonment. She appeared and filed her answer, in which she admitted that she had left her husband’s house, but attempted to justify herself in so doing upon the ground of cruel and inhuman treatment on his part; and denied that she had absented herself with the intention of abandoning him.

The cause was prepared and tried upon this state of pleading, and in 1845 a decree was rendered in favor of the husband, by whieh the marriage contract between the parties was dissolved, and he was divorced from his wife, and restored to all the rights and privileges of an unmarried man.

Both parties having subsequently become residents of the State of Ohio, Margaret Rogers filed her bill in the Court of Common Pleas of Hamilton county, in that State, against Melancthon Rogers, setting forth their marriage, alleging extreme cruelty, gross neglect of duty, and abandonment on his part for more than three years, and praying for a divorce from, and a decree against him for a provision for her future comfort and support, out of the estate and future earnings of the defendant. She alleged in her bill, she had been informed that in 1843, when the parties were both residents of the State of Ohio, her husband, upon a pretended residence in the State of Kentucky, had instituted a suit in the Kenton Circuit Court, in said State, to be divorced from her, and that he claimed to have obtained a decree of divorce in that suit, but she charged that if any such decree had been obtained by him that it was procured by fraud, inasmuch as he was not, when he brought his suit, a resident of the State of Kentucky, but of the State of Ohio.

Melancthon Rogers answered her bill, and admitted the marriage and separation, denied the mistreatment imputed to him, and set up and relied upon the decree of the Kenton Circuit Court, in the State of Kentucky, as a bar to the relief prayed for by her. Pie averred that said decree was fairly obtained, both parties having been fully heard, and insisted that he resided in the State of Kentucky when the suit was instituted in which the decree was rendered.

1. The Chancellor may, even after a trial of a suit is commenced, permit the pleadings to be amended, when it is apparent that the justice of the case requires it; especially where the amendment presents no new fact.

The Court of Common Pleas in Ohio pronounced a decree in that cause, and therein decided that the parties had been divorced by a Court of competent jurisdiction, lawfully and without fraud, but inasmuch as the decree of the court which granted the divorce had made no provision out of the estate of the husband for the support and maintenance of the wife, and the propriety of so doing had not been adjudicated upon in that case, that the husband should pay to his wife, for that purpose, the sum of three thous- and dollars, in certain specified installments of five hundred dollars each, and decreed accordingly.

That money not having been collected in the State of Ohio, this action was brought in the Kenton Circuit Court, in this State, upon that decree, to subject to its payment some real estate which belongs to Melancthon Rogers, in the State of Kentucky. The defendant set up and relied upon the first decree "between the parties, by which he was divorced from the plaintiff, and insisted that the court in Ohio that rendered the last decree had no jurisdiction over the subject matter, and that consequently the decree was void.

The court below, upon final hearing, dismissed the plaintiff’s petition, and she has appealed to this court.

A preliminary question has been made in regard to the action of the court in permitting the defendant to file an amended answer, after the cause had been submitted. We have no doubt that the Circuit Court may, even after the trial of an equitable action has commenced, permit the pleadings to be amended, where it is apparent that the justice of the case requires it to be done. But in the present case, it does not appear that the trial had commenced when the amendment objected to was permitted to be made. The entries upon the record are somewhat inconsistexit. On the 5th day of October, 1853, an order was made that the cause be submitted; on the 12th day of the same month it was ordered that the cause be set for trial on Wednesday next; on the 19th of the same month the defendant was allowed to amend his answer, to which the plaintiff excepted. Now these entries do not show that the trial had commenced when the amended answer was filed; and as the amendment really presented no new facts, but only pleaded in bar, and thereby relied, in a different form of defense, upon the same mattei’s which had been previously alleged in his answer, the plaintiff was not prejudiced by the amendment, nor did the coui't err in allowing it to be made.

2. Whore a party appears to a suit in a court which has jurisdiction of the parties and the subject matter, and contests the right of recovery, and he is adjudged to pay, he cannot, in a subsequent suit founded upon that judgment or decree, raise the question of jurisdiction. 3. The judgment, and decrees of sister States are in general conclusive as to rights of the parties, unless there is a want of jurisdiction, or fraud in procuring it, or there has been only constructive service of process, and no appearance by the defendant.

But the principal question in the case is in relation to the validity and effect of the decree rendered in the State of Ohio. That decx-ee is objected to upon the ground that the court had no jurisdiction over the subject matter upon which it adjudicated. As, however, the defendant appeared and contested the claim asserted by the complain ant, and the Court of Common Pleas in the State of Ohio had full and complete jurisdiction of the subject of divox-ce and alimony, as appears by the Statute Law of that State, the court had jui-isdiction both of the persoxi and the subject matter, and there does not seem to be any foundation whatever for this objection to the decree.

The judgment or decree of a sister State, is, as a general rule, conclusive as to the rights of the parties, unless there be a want of jui’isdiction in the court pronouncing it, or fraud has been practiced in its procurement, or there has not been any, or only constructive service of process on the defendant, and the proceedings have been carried on without his appearance. But it is contended that the decree sought to be enforced in this case, was rendered by the coux-t, in the State of Ohio, in utter disregard of a previous decision of the same matters, between the same pax-ties, made by a coux*t of competent jurisdiction in this State, and that, therefore, it ought not to be enforced, or considered, in the courts of this State, as having any validity whatever.

4. The courts of one State have no revisory power over the decisions of another State, and any attempt to exercise such power is a mere nullity.

If the decree which had been pronounced, in the suit between these parties in the Kenton Circuit Court, in this State, was thus comprehensive, and had the legal effect attributed to it in this argument, then it would seem to follow that so far as the court in Ohio undertook to modify or change it, its action was revisory, it was exercising an appellate jurisdiction witich did not belong to it; and consequently its decree was void for the want of jurisdiction.

We suppose the position will not be controverted, that so far as the courts of any of the States might attempt to change or alter the judgments or decrees of another State, upon the ground that the decision of the case was erroneous, they wouid be assuming the exercise of a jurisdiction that does not belong to them, and their action in the premises would be wholly invalid.

In illustration of this principle, we will suppose that an issue had been made, and fairly tried in a court of competent jurisdiction in this State, and a final judgment rendered between the parties on the matters involved in the issue, and that afterwards one of the parties had attempted to re-litigate the same matters, between the same parties, in one of the courts of a sister State having jurisdiction in similar cases, and the court there should permit it to be done, and should render a judgement in conflict with the one which had been previously rendered by the court in this State. Would such a judgment be valid in either State? Would not the court that rendered it have virtually assumed, in sustaining the right of one of the parties to re-try the same matters, which had been previously decided, a revisory jurisdiction over the judgment of a court of another State ? The power to re-litigate the same matters might not be expressly put upon this ground; but a court that undertakes to do it, does, in effect, assume an authority which can only be legitimately exercised by a court having some jurisdiction over the judgment first rendered. As no such jurisdiction is vested in the courts of any of the States, over the judgments rendered by the courts of other States, it follows that its assumption would be unauthorized, and the action of the court in its exercise utterly void and unlawful.

But while the correctness of this doctrine is conceded, its applicability in the present case is the point to be determined. In considering this question, it becomes material to inquire what were the matters involved in the issue in the first suit between these parties, which was decided in the Kenton Circuit Court in this State. In that suit the husband claimed a divorce upon the grounds of abandonment by the wife. The latter denied the abandonment, and resisted the relief sought for by the former. Nothing was alleged by either party in relation to the husband’s estate, nor was there any claim for a portion thereof presented by the wife, in the event that the husband should succeed in obtaining a divorce. Her right to it, in that event, was not, therefore, put in issue, nor decided by the court, unless the decree which was rendered, granting a divorce to the husband, had the legal effect attributed to it, of absolving the husband and his estate from all liability to contribute anything towards the support of the wife.

The statute which was in force at the time that suit was commenced, and which governed the proceedings therein, required the court pronouncing the decree of divorce “to regulate and order the division of the estate, real and personal, in such way as should seem just and right, having due regard to each party, and the children, if any.” (1 vol. Stat. Law, page 123.) The right of either party, under this statute, to a portion of the estate, did not depend upon the granting of the divorce to the other party, but upon various other matters, which it was proper for the court to consider; such as the nature of the cause for the divorce, the amount of the husband’s estate, the value of the property acquired by him in right of the wife, and other facts and circumstances which might properly influence a decision of the question. None of these matters were presented for the consideration of the court or acted upon by it. The wife could undoubtedly, after the decree was rendered, have proceeded, at least during the same term, by a petition to the court, in the nature of a supplemental cross-bill, to have presented a claim to a portion of the estate of the husband, for her support ; her right to which the court would still have had the power to decide, notwithstanding a divorce had been granted. It was the decree for the divorce that created a cause for the presentation of such a claim. The necessity for it had no existence, until the divorce was granted.

Whether the wife, having failed to present her claim for a portion of the husband’s estate, to the court granting the divorce, would be thereby precluded from asserting it, in a subsequent action against the husband, it is unnecessary to determine. It is sufficient, for the purposes of the present inquiry, that the matter was not res adjudicate and consequently that the court in Ohio, in the decree which it rendered, did not undertake to re-try an issue which had been previously decided by a court of competent jurisdiction in this State. If it were conceded that the wife, by her failure to present her claim to a portion of the estate of the husband, in the suit in which the divorce was granted, ought to be thereby precluded from asserting it in another action, it would not follow that the decree rendered by the court in Ohio, would, for that reason, be invalid, or be void for want of jurisdiction. The most that could be urged against it on that ground, would be, that it was erroneous. Until reversed, however, or if it be irreversible, it is entitled to the same consideration, and has the same legal force and effect of any other valid decree.

5. On bill filed in Kentucky the husband was divorced from his wife. Subsequently, in Ohio, a court having jurisdiction of the subject matter and persons, decreed alimony. Held ■ — that the decree of the court of Ohio could not be questioned in this court, in a suit to recover its amount.

The Court of Common Pleas in the State of Ohio, decided that as the claim of the wife to a portion of the husband’s estate had not been put in issue by the parties, nor adjudicated upon by the court that granted the divorce, the decree rendered in that case was not a bar to the suit then prosecuted by her. That court did not, however, undertake to re-try any matter that had been litigated in that suit between the parties, nor to revise the decree, nor to exercise any power or jurisdiction over any part of the proceedings therein. If it erroneously decided the question, whether that decree ought to preclude the wife from obtaining any relief in the suit she was then prosecuting against the husband, and thus failed to give as much effect to the decree as it was legally entitled to, that did not render its decree invalid. It still remains in full force, and being a decree of a court of competent jurisdiction in a sister State, pronounced in a suit in which the court had jurisdiction over the subj ect matter, and in which the defendant appeared, it is entitled to the same effect it would be, had it been rendered in a court of competent jurisdiction in our own State. • Whether a decree is erroneous, is not a legitimate inquiry in a suit brought for its enforcemenCy This matter can be only investigated and determined by a court having a revisory jurisdiction. The courts in this State have no more power over the judgments and decrees of the courts of another State, than the courts of that State have over the judgments of this State; and, consequently, cannot institute an inquiry for the purpose of determining whether or not such a decree is erroneous. If it be not void for the want of jurisdiction in the court, either over the subject matter or the person of the defendant, or because it has been fraudulently procured, or that the same matters had been previously litigated between the same parties, in a court of this State, then it must be respected, and treated as a valid decree. ' The decree set .... . i • np and relied upon m this case, cannot, as we have seen, be objected to on this ground, and should, therefore, have been enforced by the court below, by giving to the plaintiff the relief prayed for.

Wherefore the judgment of the Circuit Court is reversed, and cause remanded that a judgment may be rendered in conformity with this opinion.