Bell v. Bell

This was an action brought December 22, 1894, in the supreme court for the county of Erie and state of New York, by Mary G. Bell against Frederick A. Bell, for a divorce from the bond of matrimony, for his adultery at Buffalo, in the county of Erie, in April and May, 1890, and for alimony.

The defendant appeared in the case, and pleaded a decree of divorce from the bond of matrimony, obtained by him January 8, 1895, in the court of common pleas for Jefferson county, in the state of Pennsylvania, for her desertion.

The plaintiff replied, denying that the court in Pennsylvania had any jurisdiction to grant the decree, and alleging that no process in the suit there was ever served on her, and that neither she nor her husband ever was or became a resident or citizen of the state of Pennsylvania.

The present action was referred to a referee, who found the following facts: The parties were married at Bloomington, in the state of Illinois, on January 24, 1878, and thereafter lived together as husband and wife at Rochester, and afterwards at Buffalo, in the state of New York. In August, 1882, the plaintiff went to Bloomington on a visit to her mother. In her absence, the defendant packed up her wearing apparel and other property in trunks, and had them put in the stable, preparatory to sending them to her at Bloomington. In September, 1882, the plaintiff, accompanied by her mother, returned to the defendant's house, stayed there three or four days, and then left, with her mother, for Bloomington; and since then the plaintiff and defendant have not lived together, and she has always claimed her residence as being at Buffalo.

On January 8, 1895, the court of common pleas of Jefferson county, in the state of Pennsylvania, granted to the husband, on his petition filed April 9, 1894, alleging that he was and had been for a year a citizen of that state and a resident of that county, a decree of divorce from the bond of matrimony for her desertion, which, under the laws of Pennsylvania, was a ground for dissolving marriage. The subpoena in that action was not served upon the wife, but she was served by publication according to the laws of Pennsylvania, and she received through the mail a copy of the subpoena and of a notice of the examiner that he would attend to the duties of his appointment on December 14, 1894, at his office in Brookville in Jefferson county. She did not appear in person or by attorney, and judgment was rendered against her by default.

At the time of the beginning of that action and of the rendering of that decree the wife was a resident of the state of New York, and the husband was not a bona fide resident of the state of Pennsylvania. On January 31, 1894, the husband and his sister presented a petition, upon oath, to the surrogate of Erie county, for the probate of the will of their mother, in which he was described as residing at Buffalo, in the county of Erie and state of New York. No evidence was offered to show that he actually changed his domicil from New York to Pennsylvania.

The referee also found the husband's adultery as alleged, and reported that the wife should have judgment for a divorce from the bond of matrimony, and for alimony in the sum of $3,000 during her life, from the commencement of this action, payable quarterly, and for costs. The court confirmed his report, and rendered judgment accordingly for a divorce, alimony, and costs. That judgment was affirmed by the general term and by the court of appeals. 4 App. Div. 527, 40 N. Y. Supp. 443, 157 N. Y. 719, 53 N. E. 1123.

The defendant sued out this writ of error upon the ground that the judgment below did not give full faith and credit to the judgment in Pennsylvania, as required by the Constitution and laws of the United States.

After the argument of the case in this court, the defendant died; and the plaintiff moved that judgment be entered nunc pro tunc.

Mr. Henry H. Seymour for plaintiff in error.

Mr. Charles B. Wheeler for defendant in error.

Mr. Justice Gray, after stating the case as above, delivered the opinion of the court: