Black's Case

Bradford, J.

—The intestate died in the month of March, 1856, and letters of administration upon his estate were granted to his son John, and Elizabeth, claiming to be his widow. In July, Rebecca Black filed her petition for the revocation of the grant of administration, on the ground that she was the widow, and Elizabeth was not the widow of the intestate. It now becomes my duty to decide upon these conflicting claims.

It appears that John and Eebecca Black were married on January 13,1825, cohabited together about twelve years, and had issue two children. Some time in the year 1837, Mrs. Black left her husband, and thenceforth ceased to live with him. After this abandonment had continued eleven or twelve years, the husband cast about for the means of dissolving the matrimonial bond, and having been unsuccessful in an application to the Legislature of the State of New-York, he had recourse to the intervention of the Court of Chancery of the State of New-Jersey, in which jurisdiction his wife had been previously residing, and finally succeeded in procuring a decree of that Court declaring a divorce of the parties a vinculo matrimonii.

Wilful desertion by husband or wife for five consecutive years is, by the law of New-Jersey, sufficient ground for divorce; but the statute provides that at the time of instituting the proceedings the defendant shall have been an actual resident of the State, separate from the other party, for five years. The decree of the Court of Chancery, which was entered in March Term, 1850, recites the filing of the bill on September 18, 1849 ; that process of subpoena to appear and answer had been “ duly issued and returned served by the sheriff of the county of Essex;" that the defendant had not appeared, and the complainant by depositions had shown satisfactorily to the court “ that the said defendant was an actual resident in the State at the time of the complainant’s filing his said bill of complaint; that the defendant had been an actual resident of the State for the term of five years, during which said desertion had been continued, and the defendant had been guilty of wilful, continued, and obstinate desertion of her husband for thirteen years.” Upon this state of facts appearing to the court, the decree of divorce was pronounced.

On looking into the proceedings, I find that all the material facts to give the court jurisdiction were alleged in the bill of complaint, and established by the evidence. A subpoena to appear and answer was issued, dated September 20, 1849, and returnable on October 8, ensuing. The process was regularly returned by the sheriff of the county of Essex “ served;” an order for taking proofs was entered December 21, 1849, whereupon it was recited that the defendant had been “ duly summoned by writ;” and on January 2,1850, depositions verifying the charges in the bill of complaint were taken before a master in chancery. On their face all the proceedings were regular, and no exception can be taken to their sufficiency.

This is the decree of a court of another State, and the question arises, what weight is to be attached to it in this State ? The Constitution of the United States provides that “ full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State,” and that “ Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” Under the authority thus conferred, Congress, by the act of May 26, 1790, provided a particular method of proving such records, and directed that when so proved, they should “ have such faith and credit given to them in every court within the United States, as they have by law or usage -in the courts of the State from whence said records are or shall be taken.” This language is plain, and by its obvious force requires the same faith and credit for a judicial record in all the States of the Union as by law or usage it possesses in the State where the judgment is rendered. There was, however, at first in the early period of our judical history, a disposition in the courts of Mew-York as well as in those of some other States, to refuse full credit to such records; and several decisions were made holding that a judgment recovered in another State had no more effect in this jurisdiction than a foreign judgment, and was, in fact, to be treated as affording only prima faeie evidence of a demand, claim, or right founded upon it. But after the case of Mills v. Duryea (7 Cranch, 481), in the Supreme Court of the United States, our tribunals receded from this ground, and admitted judgments in other States, fairly and regularly obtained, as full and conclusive evidence of the matters adjudicated (Andrews v. Montgomery, 19 Johns., 162). Still, this doctrine has in this State always been held in subservience to the principle, that to entitle the judgment to full faith and credit, the court in which it was rendered must have had jurisdiction of the person and of the subject-matter (Borden v. Fitch, 15 Johns., 121).

Jurisdiction of the subject-matter is to be tested by the authorized extent of the power of the court in regard to the alleged cause of action. In the present case, the Court of Chancery of Mew-Jersey possessed jurisdiction to grant a divorce for desertion as charged in the bill of complaint (Elmer’s Digest, 139, § 1). All the necessary allegations to justify the decree for a divorce were proved; but whether proved or not, the court had power to try that question, did try it, and pronounced judgment. Having jurisdiction of the subject-matter, the merits of their decision cannot be investigated and criticised collaterally in another tribunal (Bissell v. Briggs, 9 Mass., 462).

The only point remaining for solution, then, relates to the jurisdiction of the court in regard to the person of the defendant.

There is no plausible ground for questioning the soundness of the rule that no one is bound personally by judicial proceedings, without express or constructive notice. Notice of some kind is the vital breath to animate judicial jurisdiction over the person. It is the primary element of the application of the judicatory power. It is the essence of a cause. Without it there cannot be parties, and without parties there may be the form of a sentence, but no judgment obligating the person. I think there can be no doubt as to the correctness of this doctrine and its foundation in natural right. It is based upon those principles of justice which are acknowledged wherever right reason has sway. It was recognized in England many years since ; it has always been the law of this State, has been extensively received throughout the Union, and has received the approbation of the Supreme Court of the United States.

It is clear, then, that a judgment rendered by a court of competent jurisdiction in another State may be questioned on the ground that the defendant received no notice of the commencement of the suit. But in the face of this rule I am asked to hold that if the record of the judgment contain recitals asserting the due service of process upon the defendant, such recitals are conclusive evidence of the jurisdiction of the-court over the person of the defendant, and cannot be controverted. If a recital of personal notice to the defendant be conclusive, of course it cannot be contradicted, and then, in order that a court might obtain jurisdiction, it would only be necessary to recite that it had jurisdiction. This would be an edifice without a foundation—a process of structure similar to that noticed by the satirist, as building from the roof downward. The right of personal notice, express or constructive, would be a mere shadow, if exposed to this mode of subversion. It would rest in mere name, and not in substance. The right to impeach, for want of personal jurisdiction, a record whose recitals asserting personal jurisdiction are conclusive, is the right to impeach a record which is unimpeachable—a proposition absurd and self-contradictory in its very terms.

We come down, then, to the position that the defendant, in answer to this record and the decree of divorce, is not estopped from showing that she had not any legal notice of the institution of the suit, was not, in fact, made a party to it, and is not, therefore, bound by the judgment. I shall first consider the facts bearing upon this point, and then state the rules of evidence applicable to them.

[We omit some comments of the court upon a mere question of fact, raised upon an allegation of the petitioner that she was in the State of Connecticut at the time when the divorce suit in New-Jersey was brought.]

1. The record is presumptive evidence of jurisdiction. The idea will not be lightly entertained that a judicial tribunal has exceeded its authority, or undertaken to exercise it where it might not be lawfully exerted. The doctrine of our courts upon this point is expressed- in Shumway v. Stillman (4 Cow., 292 ; 6 Wend., 447):—“ Every presumption is in favor of the jurisdiction of the Court. The record is prima facie evidence of it, and will be held conclusive until clearly and explicitly disproved.” The result of this rule is, that the defendant must disprove every mode of lawful service of process ; must show, clearly, explicitly, and affirmatively, that there was no lawful service. The mind of the court must not be left in doubt upon this point; there must not be a mere balance of probabilities, but such a weight of evidence as shall avail to overturn the opposing proof, and impugn the presumption of the truth of the record.

2. Mrs. Rebecca Black, at the time of the institution of the suit for divorce, was a resident of the State of New-Jersey. She had been living there over a year, if not longer, occupied furnished apartments, and had there a fixed and permanent place of abode. Mr. Weed states that she left in July or August, with the intention of not returning. But a change of residence does not rest in mere intention. The domicile can be altered only by a conjunction of the fact with the intention. Her visit to Scotland was certainly only for a temporary purpose, and not with the design of making her abode at that place. Her establishment at Belleville was not broken up; her furniture was not removed until after her return from Connecticut, and a domicile in New-York was not acquired before that period. As a resident and citizen of New-Jersey, she was amenable to its laws, and bound by their provisions relative to constructive service of process.

3. By the statute of New-Jersey a subpoena to appear and answer may be served on the defendant personally, or by leaving a copy thereof at the defendant’s “ dwelling-house or usual place of abode, at least ten entire days prior to its return” (Elm Dig., 56, § 7). The sheriff is required to sign the return, and on the subpoena being returned “ served,” the cause proceeds (Dig., 57, § 13, 512, § 16). That an effort was made to serve this process appears from Hr. Weed’s statement that a person called for that purpose and exhibited the subpoena to him. It is true he also states that no copy was left, at that or any other time, but he can only give his own knowledge and hearsay on that point, and there may have been copy service without his knowledge. He was not the only person about the premises. He knew the sheriff, and says the person who called with the subpoena was not the sheriff. The return on the writ “ served” is in the sheriff’s own handwriting. An entry in his own writing was made in his book, charging the “ service, return, and mileage,” under date of September 26, 1849. It was proved that whenever process was served by the general deputies, their names appeared on the return, and when by special deputies, their authority was indorsed on the writ. The return then as made to the court is an assertion on the part of the sheriff that he made the service himself. The character of that officer is shown to have been high and unimpeachable. If, therefore, there was no personal service of the subpoena, the presumption in favor of service by leaving a copy at the usual place of abode is not disproved.

4. As a matter of proof, the return of the officer is itself evidence of facts alleged in it, and it cannot be impeached collaterally. Though untrue, it can be impugned only in an action for a false return, or on the indictment of the officer, or on an application to the court issuing the process, made by a party interested in the cause. (Avrill v. Sheriff of Warwick, 3 Nev. & M., 871; Gyfford v. Woodgate, 11 East, 297; Anon., Lofft., 371; Goubot v. De Croux, 3 Tyr., 906.) The case of Putnam v. Mann (3 Wend., 202), in the Supreme Court of this State, illustrates in the strongest manner the extent to which this doctrine will be carried. There the plaintiff, who was a constable, had returned to a justice that he had duly served the defendant with process at his own suit, when he had not. Judgment was entered, and the defendant to his surprise was arrested in execution, without even having been notified of the commencement of the suit. In an action brought by the defendant against the constable and the justice, the Court held that the return was conclusive and could not be collaterally impeached.

5. In my judgment, I am bound to hold, under all these circumstances, that there is in the case sufficient proof of valid constructive notice to the defendant of the institution of the suit for divorce; that even if the sheriff’s return could be impeached, it has not been done, and if there is any hypothesis consistent with the integrity of the sheriff’s return and the validity of the record, that hypothesis must be distinctly refuted. Service by leaving a copy at the usual place of abode is not only reconcilable with the return of the officer, but is not negatived with any clearness. It might have occurred without having been brought home to the knowledge of Mr. Weed. There was no motive for concealment, no ground for apprehending any opposition, and the process was in fact exhibited to Mr. Weed. To suppose a violation of duty on the part of the sheriff would, under such circumstances, require evidence so complete and stringent as would absolutely exclude any solution consistent with his innocence and integrity.

6. The court must have less reluctance in concluding Mrs. Black by the decree of divorce, in view of the undoubted truth that she had notice in fact of the existence of the suit. She had voluntarily abandoned her husband, and lived separately from him for twelve years. She was well aware that he was anxious for a divorce, if she would not return to his home ; that an attempt had been made to procure it through the intervention of the Legislature of this State, and that proceedings were contemplated for the same purpose in New-Jersey. Mr. Taylor testifies that in 1848 or 1849 he called upon her and requested her to return to her husband, and that she refused on the ground of religious scruples. He says that she stated her residence to have been in New-Jersey ever since she had left Mr. Black, and he thereupon proposed that a divorce should be procured in that State. She said she had no objections that he should get a divorce. Mr. Waldo testifies :—“ She knew there was an application, but did not know the time of the court, or where it was being done; she knew there was something being done about it; that there were proceedings instituted on the subject. I got the general impression that the proceedings were in New-Jersey; she said she had never been before the court in New-Jersey, or had the opportunity. I do not remember that she said she had any notice of the proceedings.” Mr. Gray states that he heard something relative to the proposed divorce before his visit to Belle-ville, in July, 1849, and that'“it'was to be done in New-Jersey.” Mrs. Gray says that Mrs. Black informed her she had met Mr. Taylor on the ferry-boat, “ and asked him if he had got the divorce.” Mr. Taylor’s statement of what took place at that interview is :—“She said: ‘ Well, Mr. Black has got his divorce. I am very glad of it.’ ” Mr. Weed shows that on Mrs. Black’s return to New-Jersey he informed her that during her absence some person had called to serve the process in the divorce suit, and that he took advice as to the effect of that act. It is quite obvious, therefore, from the evidence, that on the part of Mr. Black, his counsel, and the sheriff, there was no attempt at concealment. Mr. Black desired to be at liberty to marry again, and he did marry again, on the heel of this decree. With him there existed every possible motive to have the proceedings regular and valid. All the presumptions of law are in favor of his ignorance of any informality, and against a wilful commission of the high crime of bigamy. Nothing can be more certain than that Mrs. Black was fully apprised beforehand of the intention of her husband to bring the suit for divorce in the State of New-Jersey ; that she subsequently understood process had been issued for that purpose out of the Court of Chancery; and that she was ultimately informed the decree of the court had been obtained; notice in fact, is thus brought home to her. Then was the time to interfere. The sheriff was living, the facts were fresh, and any alleged irregularity might easily have been sifted. There was no difficulty in interposing a defence, or obtaining a hearing. The decree itself might have been opened upon good cause shown. If she was absent from the State, and there was no personal service of the process, it could have been proved without a doubt. If there was question as to service by copy, the question could readily have been solved. And yet she made neither sign, nor movement, nor objection, nor opposition. She permits the case to proceed quietly, when at any moment she might have been heard. She slumbers on, sufficiently conscious of the position of freedom her husband was anxious to attain, and of the unhappy condition in which a future wife might innocently be placed if the proceedings were irregular, and never seems to have waked up to a full sense of her dormant rights till her husband was in the grave, and his property was to be distributed. As between a party thus chargeable with notice and with laches, and one entirely innocent and without notice, there will be no struggle to invalidate this decree. The intendment of the law in favor of the due service of process, the truth of the sheriff’s return, and the jurisdiction of the court rendering the judgment, will be strengthened, and not weakened ; and even if the defendant were allowed to impeach the officer’s return, she would be put to the most strict, convincing, and undeniable proof that service had not been made in either of the modes allowed by the statute of New-Jersey.

I am of opinion that service by copy at the petitioner’s residence in Belleville was sufficient, and that such service has not been disproved. This was constructive notice in law ; and without passing upon the question of personal service, I am also satisfied that she had notice in fact of the pendency of the proceedings. I must therefore hold that the decree of divorce is valid, and that the second marriage of the intestate with Elizabeth Black was lawful and regular. As the widow of the deceased, she is entitled to letters of administration, and to a distributive share of his estate.